Association of Family and Conciliation Courts 51st annual conference
Navigating the Waters of Shared Parenting: Guidance from the Harbour
Toronto, Canada, May 28 – 31, 2014
To treat or not to treat: legal responses to transgender young people
The Hon. Justice Steven Strickland, Judge of the Appeal Division and
Chair, Law Reform Committee, Family Court of Australia*±
Table of Contents
Introduction ..................................................................................................................3
Setting the scene ...........................................................................................................3
Cooperative federalism and jurisdiction ........................................................................... 3
Terminology ......................................................................................................................... 4
Medical procedures which require Family Court authorisation .................................... 6
Examples of procedures which require court authorisation ........................................... 8
Procedure for applications for authorisation ................................................................... 9
The road to Re: Jamie ................................................................................................11
The decision in Re: Alex (2004) FLC 93-175 ................................................................... 11
Responses to Re: Alex........................................................................................................ 14
Decisions subsequent to Re: Alex ..................................................................................... 15
Re: Brodie (Special Medical Procedures: Jurisdiction) [2007] FamCA 776; Re Brodie (Special
Medical Procedure) [2008] FamCA 334 ........................................................................ 15
Re Inaya (Special Medical Procedure) (2007) 38 Fam LR 546 ..................................... 16
Re: Alex (2009) 42 Fam LR 645 ..................................................................................... 17
Re: Bernadette [2010] FamCA 94; Re: Bernadette (2011) FLC 93-463 ........................ 19
Re: Sally (Special Medical Procedure) [2010] FamCA 237 .......................................... 22
Re: Sean & Russell (Special Medical Procedures) (2010) 44 Fam LR 210 ................... 24
Re: O [2010] FamCA 1153 ............................................................................................. 26
Re: Rosie [2011] FamCA 63 ........................................................................................... 27
Re: Jodie [2013] FamCA 62 ........................................................................................... 29
Re: Lucy [2013] FamCA 518 .......................................................................................... 30
Re: Sam & Terry (Gender Dysphoria) [2013] FamCA 563 ........................................... 32
Re: Jamie at first instance .........................................................................................35
Introduction ....................................................................................................................... 35
Background........................................................................................................................ 36
Evidence before the court ................................................................................................. 36
Reasons for the decision.................................................................................................... 38
Re: Jamie on appeal ...................................................................................................39
Background, grounds of appeal and parties to the appeal ............................................ 39
Reasons for the decision.................................................................................................... 40
Bryant CJ ........................................................................................................................ 40
Finn J .............................................................................................................................. 44
Strickland J ..................................................................................................................... 45
What principles can be discerned from Re: Jamie?................................................46
What has happened subsequent to Re: Jamie? .......................................................47
1
Re: Shane (Gender Dysphoria) [2013] FamCA 864 ...................................................... 47
Re: Sarah [2014] FamCA 208 ........................................................................................ 48
Re: Spencer [2014] FamCA 310 ..................................................................................... 49
The position in North America as compared with Australia .................................51
Canada ........................................................................................................................... 51
Ontario ......................................................................................................................................51
British Columbia ......................................................................................................................53
The United States .......................................................................................................... 54
New York .................................................................................................................................55
California ..................................................................................................................................57
Virginia.....................................................................................................................................58
Similarities and differences between North America and Australia .....................59
Similarities between North America and Australia ....................................................... 59
The ‘mature minor’ doctrine and Gillick competence .................................................... 59
Consent to treatment versus refusal of treatment ............................................................ 59
Differences between North America and Australia ....................................................... 60
Statute versus common law ............................................................................................ 60
Decision making responsibility – medical versus legal .................................................. 60
Age of consent ................................................................................................................ 61
Types of medical procedures and presumptive capacity ................................................ 61
In loco parentis, emancipation and neglect ..................................................................... 61
Human rights instruments ............................................................................................... 62
Would having a human rights instrument have made a difference to the outcome in Re:
Jamie?..........................................................................................................................62
Relevant decisions from Canada...................................................................................... 63
Relevant decisions from the United States ...................................................................... 66
Relevant decisions from the United Kingdom ................................................................ 67
Current human rights protections for transgender young people in Australia .......... 70
What does the future hold? .......................................................................................72
Enactment of ‘consent to medical treatment’ statutes ................................................... 73
Reconsideration of the Re: Marion guidelines ................................................................ 74
The role of the Family Court of Australia ...................................................................... 74
Competency assessments – development of criteria....................................................... 75
The limits of Gillick competence ...................................................................................... 76
Gender dysphoria as a “disorder” ................................................................................... 78
Binary conceptions of gender ........................................................................................... 79
Reasoning by reference to human rights law.................................................................. 80
Conclusion...................................................................................................................80
2
Introduction
In 2013 the Full Court of the Family Court of Australia (Bryant CJ, Finn and Strickland JJ) handed
down Re: Jamie,1 the first ever appellate decision of the Court concerning whether court
authorisation was required to treat children and adolescents with gender dysphoria. In that
judgment, the Full Court considered the application of principles developed by the High Court of
Australia in Secretary, Department of Health and Community Services; JWB and SMB (known as
‘Marion’s Case’ or ‘Re: Marion’),2 a case which concerned the proposed sterilisation of an
intellectually disabled young person, to treatment for gender dysphoria. The Full Court critically
examined a 2004 decision of a former Chief Justice of the Court, Nicholson CJ, in Re: Alex,3 where
it was found that court authorisation for the condition was required, for both the reversible (Stage 1)
and partly irreversible (Stage 2) stages of treatment. The Full Court also considered the issue of
whether people under the age of 18 were able to give their own consent to medical treatment (the
test of Gillick competency), and in what circumstances. Significantly, the Full Court departed from
the earlier decision in Re: Alex in finding that court authorisation for Stage 1 treatment for gender
dysphoria was not required.
This paper discusses the principles established by the High Court of Australia in Re: Marion
concerning when court authorisation for medical treatment of young people is required, the decision
in Re: Alex, the cases following Re: Alex, and the first instance and appellate decisions in Re: Jamie.
It discusses how Re: Jamie departs from previous jurisprudence, its significance and what the
implications of the decision might be.
The paper compares the legal position in Australia with that in certain Canadian provinces and
American states and reflects on whether the outcome in Re: Jamie would have been different if
Australia, like Canada and the United States, had a national Charter or Bill of Rights. Finally, the
paper considers a range of issues that are likely to confront the Court as a result of the decision,
including whether the Family Court will continue to have any role at all in authorising treatment for
gender dysphoria.
Setting the scene
Cooperative federalism and jurisdiction
Australia is a federation, comprised of the federal parliament and state and territory parliaments.
The federal (Commonwealth) government has specific powers under the Australian Constitution
and the states and territories exercise residual powers.
The Commonwealth has constitutional responsibility for marriage, divorce and matrimonial causes,
and parental rights and the custody and guardianship of children. The Family Law Act 1975 (Cth)
(“the Family Law Act”) is the primary piece of legislation that governs proceedings with respect to
* The views expressed in this paper are my own and are personal to me. They do not represent those of the Family
Court of Australia.
± I wish to acknowledge the assistance of Kristen Murray, Senior Legal Research Adviser to the Hon. Diana Bryant AO,
Chief Justice of the Family Court of Australia, in the preparation of this paper.
1
[2013] FamCAFC 110.
2
(1992) 175 CLR 218.
3
(2004) FLC 93-175.
3
dissolution of marriage, arrangements for children post-separation, property proceedings, spousal
maintenance and other matters, such as injunctive relief. The Family Court, a superior court of
record, exercises this jurisdiction, largely concurrently with the lower court, the Federal Circuit
Court of Australia. Part of the Court’s jurisdiction includes what has been described as a ‘welfare’
jurisdiction with respect to children, based on the common law parens patriae power. The ‘welfare’
jurisdiction is found in section 67ZC of the Family Law Act. Certain medical procedures require
the Family Court’s authorisation under section 67ZC. As the Full Court of the Family Court found
in Re: Bernadette,4 the Court’s powers under 67ZC are limited to making orders for people under
the age of 18 years. As a matter of practice, applications for consent to authorise medical treatment
are made to the Family Court rather than the Federal Circuit Court.
Australia has six states and two territories. States and territories have jurisdictional responsibility
for child welfare and protection. State child welfare agencies are often invited to intervene in
Family Court proceedings where the welfare of a child is in issue, including in applications for
permission to authorise medical treatment for children. State Supreme Courts also have parens
patriae jurisdiction at common law.
Two Australian states, namely New South Wales and South Australia, have consent to medical
treatment legislation, which confers full capacity for decision making about medical treatment on
persons aged 16 years and over.5 New South Wales also has legislation in place governing the
performance of “special medical procedures”, which provides that the New South Wales Civil and
Administrative Tribunal is responsible for deciding whether special medical treatment should be
provided to a person aged under 16 years.6
Terminology
‘Special medical procedures’
Although the term “special medical procedures” has been used in most of the Family Court cases
where consent for medical treatment has been sought, Finn J in Re: Jamie queried the usefulness of
the term and observed that it did not appear in the High Court of Australia’s decision in Re: Marion
(discussed in more detail below), nor in Nicholson CJ’s later decision at first instance in that case.7
Finn J further noted that the relevant rules, namely the Family Law Rules 2004 (Cth) (“the Rules”),
refer only to a “medical procedure”. Finn J said that she preferred the expression “medical
procedures requiring court authorisation” and that term will be used where possible.
Gender identity disorder/gender dysphoria
People with gender dysphoria have a persistent and profound discomfort with their biological sex
and a strong identification with the gender of the opposite sex. It is usually diagnosed by reference
to the diagnostic criteria contained in the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (“the DSM”). The DSM-IV was originally published in
1994 and an updated version, the DSM-IV-TR, was published in 2000. The DSM-IV-TR was
superseded by the DSM-5, published in May 2013. The condition was described as “gender
identity disorder” in the DSM-IV. It was renamed “gender dysphoria” after criticisms that the
4
(2011) FLC 93-463.
Minors (Property and Contracts) Act 1970 (NSW); Consent to Medical Treatment and Palliative Care Act 1995 (SA).
6
Children and Young Persons (Care and Protection) Act 1998 (NSW), s 175.
7
In Re Marion (No 2) (1994) FLC 92-448.
5
4
former term was stigmatizing. Subtyping by sexual orientation was deleted in the DSM-5, and the
diagnosis for children was separated from that for adolescents and adults.8
For a child to be diagnosed with gender dysphoria, there must be a marked incongruence between
one’s experienced/expressed gender and assigned gender, of at least six months’ duration, as
manifested by at least six identified criteria. These criteria must include “a strong desire to be of
the other gender or an insistence that one is the other gender, or some alternative gender different
from one’s assigned gender”. For adolescents, there must be a marked incongruence between one’s
experienced/expressed gender and assigned gender, of at least six months’ duration, as manifested
by at least two identified criteria – no criterion is mandatory. For both, the condition must also be
associated with clinically significant distress or impairment in social, school, occupational or other
important areas of functioning.
As far as treatment for gender dysphoria is concerned, Hewitt et al wrote:9
In addition to ongoing psychological support, peripubertal adolescents with persistent [gender dysphoria]
may be given hormonal treatment using gonadotrophin releasing hormone (GnRH) analogue to suppress
puberty once it has commenced, followed later by cross-sex hormone therapy to promote physical
development in the affirmed gender.
Cross-sex hormone therapy is usually given from the age of 16 years. Surgery is not considered in
patients less than 18 years of age. This process for psychological and medical treatment of children
and adolescents with gender dysphoria accords with national and international guidelines.10
Stage 1 of the treatment – the suppression of puberty – is fully reversible. Stage 2 of the treatment
– the administration of testosterone or oestrogen – has irreversible features. For testosterone use in
females transitioning to males, these include hair growth, voice deepening and muscle growth.
There is also a risk of impaired liver function, polycystic ovaries and ovarian cancer. For oestrogen
use in males transitioning to female, these include breast development, testicular shrinkage and
growth height maturation. There is also a risk of impaired liver function and thromboembolism.
The prevalence of the condition was evidenced in a study undertaken by a major treating hospital in
Melbourne, Australia. Between 2003 and 2011, 39 children and adolescents were referred to the
hospital’s specialist treatment clinic for gender identity disorder. Of those, 21 adolescents were
either approaching puberty or were pubertal, and were reviewed for consideration of hormone
treatment. 11 had planned to make an application to the Family Court for permission to authorise
hormone treatment.11
The Family Court decisions that have involved applications for treatment of gender dysphoria have
used different terms to describe the condition. For example, in Re: Alex, Nicholson CJ said that he
preferred the term “gender identity dysphoria” to “gender identity disorder”, as he thought it
questionable whether the condition was in fact a “disorder”. The Full Court in Re: Jamie referred
8
American Psychiatric Association, DSM-5 fact sheets, Gender Dysphoria, http://www.psychiatry.org/dsm5 (accessed
1 May 2014).
9
Jacqueline Hewitt et al, ‘Hormonal Treatment of Gender Identity Disorder in a Cohort of Children and Adolescents’
(2012) MIA 578.
10
Australiasian Paediatric Endocrine Group Disorders of Sexual Development Working Group, position statement and
management guidelines; World Professional Association for Transgender Health, Standards of Care for the Health of
Transsexual, Transgender, and Gender Non-conforming People.
11
Above n 9.
5
to “childhood gender identity disorder”. At the time Re: Jamie was heard at first instance and on
appeal, the relevant diagnostic psychiatric manual was the DSM-IV. Accordingly, the discussion of
the decisions up to and including Re: Jamie will use the term “gender identity disorder”. For the
discussion of developments following Re: Jamie and contemporary issues associated with the
treatment of non-gender conforming conditions, the term “gender dysphoria” will be used.
Medical procedures which require Family Court authorisation
As Dessau J observed in Re: Jamie at first instance:12
It is generally within the bounds of a parent’s responsibility to be able to consent to medical
treatment for and on behalf of their child. There are however certain procedures, referred to in the
authorities as “special medical procedures”, that fall beyond that responsibility and require
determination by the court, as part of the court’s parens patriae or welfare jurisdiction… .
Following Re: Marion, and as part of extensive amendments to the Family Law Act made in 1995,
a definition of parental responsibility was included in section 61B. It states that “parental
responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents
have in relation to children.” Pursuant to section 61C, both parents have parental responsibility for
a child, subject to court orders. Section 64B defines a “parenting order”, which pursuant to section
64B(2)(i) includes an order concerning any aspect of the care, welfare or development of a child or
any other aspect of parental responsibility for a child.
Section 67ZC was inserted into the Act in 1995. It states:
Orders relating to welfare of children
(1)
In addition to the jurisdiction that a court has under this Part in relation to
children, the court also has jurisdiction to make orders relating to the welfare of
children.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a
court to make an order relating to the welfare of a child.
(2)
In deciding whether to make an order under subsection (1) in relation to a
child, a court must regard the best interests of the child as the paramount
consideration.
Note: Sections 60CB and 60CG deal with how a court determines a child’s best interests.
Section 67ZC is the statutory basis for the Court’s jurisdiction to approve or refuse permission for
medical procedures that fall outside the bounds of parental consent. According to Callinan J, a
former judge of the High Court of Australia, the section “reproduce[s] the earlier welfare
jurisdiction [recognised by the High Court of Australia in Marion’s Case], arguably in clearer terms
…”13
Sub-section 67ZC(2) confirms that, as with decision making about children generally, the child’s
best interests is the paramount consideration in the exercise of the ‘welfare jurisdiction’. There is a
list of factors that the Court must consider in determining what outcome is in a child’s best interests,
12
13
[2011] FamCA 248 at [33].
Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (2004) 219 CLR 365 at [221].
6
divided into ‘primary’ and ‘additional’ considerations.14 This includes any views expressed by the
child and any factors (such as the child’s maturity and level of understanding) that the court thinks
is relevant to the weight it should give to the child’s views.
How is the distinction drawn between procedures that require court authorisation, and
procedures that do not? The High Court of Australia and ‘Re: Marion’
No clear line is able to be drawn between the type of medical procedures that fall within the realm
of parental responsibility and those which require court authorisation pursuant to section 67ZC.
The principles for identifying the type of medical procedures requiring authorisation were
pronounced by the High Court of Australia in Re: Marion. That case involved an appeal to the
High Court of Australia from a decision of the Full Court of the Family Court that the parents of an
intellectually disabled 13 year old girl could authorise her sterilisation without a court order. The
High Court allowed the appeal.
In their joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ stated:15
There are, in our opinion, features of a sterilization procedure or, more accurately, factors involved
in a decision to authorize sterilization of another person which indicate that, in order to ensure the
best protection of the interests of a child, such a decision should not come within the ordinary scope
of parental power to consent to medical treatment. Court authorization is necessary and is, in
essence, a procedural safeguard. Our reasons for arriving at this conclusion, however, do not
correspond precisely with any of the judgments considered. We shall, therefore, give our reasons.
But first it is necessary to make clear that, in speaking of sterilization in this context, we are not
referring to sterilization which is a by-product of surgery appropriately carried out to treat some
malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”,
because of their uncertainty. But it is necessary to make the distinction, however unclear the
dividing line may be.
As a starting point, sterilization requires invasive, irreversible and major surgery. But so do, for
example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within
the ordinary scope of a parent to consent to. However, other factors exist which have the combined
effect of marking out the decision to authorize sterilization as a special case. Court authorization is
required, first, because of the significant risk of making the wrong decision, either as to a child’s
present or future capacity to consent or about what are the best interests of a child who cannot
consent, and secondly, because the consequences of a wrong decision are particularly grave.
As the Full Court said in Re: Jamie:16
An effective formulation of the ratio of Marion’s case is to be found Nicholson CJ’s decision in Re:
Alex at [153]:
Marion’s case involved an application for the sterilisation of a l4-year-old teenager with a severe
intellectual disability for the purpose of “preventing pregnancy and menstruation with its
psychological and behavioural consequences”. The gravamen of the decision was that if a child or
young person cannot consent her/himself to a medical procedure, parental consent (which for present
purposes may be equated with that of a guardian) is ineffective where the proposed intervention is:

invasive, permanent and irreversible; and
14
Family Law Act 1975 (Cth), s 60CC.
Secretary, Department of Health and Community Services; JWB and SMB (1992) 175 CLR 218 at 249-250.
16
Re: Jamie [2013] FamCAFC 110 at [22].
15
7

not for the purpose of curing a malfunction or disease.”
The majority in Re: Marion endorsed the decision of the House of Lords in Gillick v West Norfolk
and Wisbech Health Authority (‘Gillick’)17 that a child is capable of providing his or her own
consent to medical treatment where he or she is found to be of sufficient intelligence and maturity
to fully understand what is involved. This is what has been referred to in subsequent cases,
including Re: Jamie, as Gillick competency.
The principles emerging from Re: Marion are therefore that court authorisation to perform a
medical procedure on a non-Gillick competent child is required where:




the proposed procedure is invasive, permanent and irreversible;
the proposed procedure is non-therapeutic, meaning it is not for the purpose of curing a
malfunction or disease;
there is a significant risk of making the wrong decision, either as to a child’s present or
future capacity to consent or about what are the best interests of a child who cannot consent;
and
the consequences of a wrong decision are particularly grave.
Examples of procedures which require court authorisation
The following are examples of conditions where an application has been made to the Family Court
for permission to undertake medical treatment. In some cases the Family Court held that its
permission was not required, as consent to treatment fell within the realm of parental
responsibility:18








sterilisation of a young person with an intellectual disability19
cardiac surgery on an infant without parental consent20
administration of experimental non-approved drug treatment21
bone marrow harvest22
gonadectomies23
treatment for people with disorders of sexual development24
treatment for gender identity disorder25
sex reassignment surgery26
17
[1985] 3 All ER 402. It should be remembered however that the House of Lords in Gillick was concerned with
assessing capacity of a child aged under 16, as children aged 16 years and over can give their own consent to medical
treatment – see Family Law Reform Act 1969 (UK), s 8.
18
Examples include Re: Inaya [2007] FamCA 658; Re: Sean & Russell [2010] FamCA 928; Re: Sarah [2014] FamCA
208.
19
Re: Marion (1992) 175 CLR 218; Re: Katie (1996) FLC 92-659; Re: Angela [2010] FamCA 98.
20
Re: Michael (1994) FLC 92-486.
21
Re: Baby A [2008] FamCA 417.
22
Re: GWW and CMW (1997) FLC 92-748; Re: Inaya [2007] FamCA 658.
23
Re: Sally [2010] FamCA 237; Re: Sean and Russell [2010] FamCA 948; Re: Sarah [2014] FamCA 208.
24
Re: A (a child) (1993) FLC 92-402; Re: Sarah [2014] FamCA 208.
25
Re: Alex (2004) FLC 93-175; Re: Brodie [2008] FamCA 334; Re: Bernadette [2010] FamCA 94; Re: O [2010]
FamCA 1153; Re: Rosie [2011] FamCA 63; Re: Jamie [2011] FamCA 248; Re: Jodie [2013] FamCA 62; Re: Lucy
[2013] FamCA 518; Re: Sam and Terry [2013] FamCA 563.
26
Re: A (a child) (1993) FLC 92-402; Re: Alex [2009] FamCA 1292.
8
Procedure for applications for authorisation
Division 4.2.3 of the Rules sets out the procedure to be followed in applications requiring court
authorisation of medical procedures. The Dictionary to the Rules define a “Medical Procedure
Application” as:
…an Initiating Application (Family Law) seeking an order authorising a major medical
procedure for a child that is not for the purpose of treating a bodily malfunction or disease.
Example
An example of a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or
disease is a procedure for sterilising or removing the child’s reproductive organs. 27
In Re: Jamie, Finn J expressed concern about the use of the word “bodily” in the definition, and the
precision of the language in the example given in the Rules.28
Any medical procedure application and any document filed with it must be served on a prescribed
child welfare authority, being state and territory child welfare departments.29
Sub-rule 4.09(1) provides that evidence must be given that satisfies the Court that the proposed
medical procedure is in the best interests of the child. Pursuant to sub-rule 4.09(2) that must
include evidence from a medical, psychological or other relevant expert witness that establishes the
following matters:
(a)
the exact nature and purpose of the proposed medical procedure;
(b)
the particular condition of the child for which the procedure is required;
(c)
the likely long-term physical, social and psychological effects on the child:
(i)
if the procedure is carried out; and
(ii)
if the procedure is not carried out;
(d)
the nature and degree of any risk to the child from the procedure;
(e)
if alternative and less invasive treatment is available — the reason the procedure is
recommended instead of the alternative treatments;
(f)
that the procedure is necessary for the welfare of the child;
(g)
if the child is capable of making an informed decision about the procedure —whether the
child agrees to the procedure;
(h)
if the child is incapable of making an informed decision about the procedure — that the
child:
(i)
(ii)
(i)
is currently incapable of making an informed decision; and
is unlikely to develop sufficiently to be able to make an informed decision within the
time in which the procedure should be carried out, or within the foreseeable future;
whether the child’s parents or carer agree to the procedure.
27
The Dictionary to the Family Law Rules 2004 (Cth) forms part of the Rules (see Note 1 to the Dictionary).
Re: Jamie [2013] FamCAFC 110 at [155].
29
Family Law Rules 2004 (Cth), r 4.10.
28
9
Upon the commencement of the Rules in 2004, practice directions for medical procedure
applications were issued for the Family Court’s Victorian and Queensland registries.30 The practice
directions are designed to:
(a)
promote positive outcomes for children and young persons;
(b)
promote the care, welfare and development of children and young persons;
(c)
provide intending applicant/s and other interested parties with the opportunity to identify
and discuss all relevant issues;
(d)
assist in identifying, where appropriate, alternative options and strategies;
(e)
encourage and support a co-operative and collaborative approach between the four
participating organisations and medical and health professionals;
(f)
ensure consistent and timely management of applications for a medical procedure for a
child;
(g)
ensure that a Court hearing is of 'last resort', after all other options have been tested or
considered and failed to or been assessed as unable to produce a satisfactory outcome;
(h)
ensure that, if this matter proceeds to a court hearing, the Family Law Rules are followed
and, in particular, all necessary evidence is available to the Court in compliance with
Division 4.2.3 of the Rules.
An issue that became of some significance in the decision at first instance of Re: Baby D,31 and
before the Full Court in Re: Jamie, is that the practice directions require the relevant public
authority to be served with an application for consent to authorise medical treatment for a child. As
Young J pointed out in Re: Baby D however, that right is confined to service and does not confer
any right to appear and be heard in the proceedings.
Individuals who and organisations which are not parties to the proceedings can make an application
to intervene. State child welfare authorities have notice of the application as a requirement of the
Rules. Other bodies that potentially have an interest in the proceedings may be invited by the court
to intervene. These are often the Australian Human Rights Commission (“AHRC”) and public
authorities, such as state public advocates, who can be appointed as guardians for people with
disabilities. On occasion, Commonwealth and state Attorneys-General have been invited to
intervene. In Re: Jamie, the Full Court was required to deliver judgment in respect of an
application by a public authority to intervene. The Full Court granted the application on a limited
basis.32
It is common, but not a legal requirement, for an independent children’s lawyer to be appointed.
The role of an independent children’s lawyer is to form an independent view, based on the evidence
available to the independent children’s lawyer, of what is in the best interests of the child; and to act
Victorian and Queensland Registries – Medical Procedure Applications, Family Court of Australia, Practice
Direction No. 9 of 2004, 17 March 2004.
31
[2011] FamCA 14.
32
Re: Jamie [2012] FamCAFC 8.
30
10
in relation to the proceedings in what the independent children’s lawyer believes to be in the best
interests of the child.33
The Family Court also has the power to order a family report to be prepared and admitted in
evidence in applications for authorisation of medical treatment. A family report is a professional
appraisal of the family from a non-legal and non-partisan perspective, independent of the case
presented by either party to a dispute. Family reports are prepared by family consultants, who are
specialist social workers or psychologists employed by the Family Court, or by external officers
with appropriate qualifications.
The road to Re: Jamie
As earlier discussed, Re: Jamie is a landmark appellate decision. In it, the Full Court found that
treatment for Stage 1 of gender dysphoria was therapeutic, that there was no significant risk of
making the wrong decision, and that the consequences of making a wrong decision were not
particularly grave. The Full Court found that treatment for gender dysphoria was divisible, and that
court authorisation for Stage 1 of the treatment program was not required. In so doing, the Full
Court departed from earlier authorities, including Re: Alex, which held that court authorisation for
both stages of treatment was necessary. The Family Court’s journey from Re: Alex to Re: Jamie
and beyond is discussed below.
The decision in Re: Alex (2004) FLC 93-175
Introduction
Re: Alex was the first case in which the Family Court of Australia was asked to provide
authorisation for treatment for a young person who was biologically one sex (female) but who
identified as another (male).
Background
Alex’s legal guardian brought an application in 2003, when Alex was aged 13 years, for treatment
of the condition Nicholson CJ described as “gender identity dysphoria”. The treatment sought was
in two stages: the administration of oestrogen and progestogen until Alex turned 16 years old, the
effect of which would be to suppress Alex’s menses, and the administration of a luteinizing
hormone releasing hormone (LHRH) analogue and testosterone after Alex turned 16 years old, for
the purpose of beginning the process of masculinisation. No surgical intervention was sought until
Alex turned 18 years old. The respondents to the application were Alex’s mother, from whom he
was estranged, and Alex’s aunt, with whom he lived. An independent children’s lawyer was
appointed to assist the court in determining whether the orders sought would be in Alex’s best
interests. The Human Rights and Equal Opportunity Commission (“HREOC”) (now the AHRC)
intervened without objection, in order to make submissions on the human rights principles
applicable in the case. All parties to the proceedings supported the orders sought and thus there was
no contradictor to the application.
33
Family Law Act 1975 (Cth), sub-s 65LA(2).
11
Evidence before the court
The Court had before it what Nicholson CJ described as an “impressive array” of medical expert
opinion, evidence from Alex’s case worker and school principals, and a family report. Most of the
evidence was in affidavit form. Nicholson CJ also acceded to a request from Alex to meet him in
private, which was not objected to by any of the parties.
The evidence before the Court was that Alex had a “long-standing, unwavering and present
identification as a male”,34 dating back to his childhood. Alex dressed in male clothing, asked to be
addressed by the male pronoun and refused to use the female toilets; wearing nappies to school
instead until he was permitted to use a disabled toilet. Alex was said to have responded with anger
when attempts were made to reinforce his gender as female. According to notes kept by the
government department appointed as Alex’s legal guardian, Alex asked to see a doctor to confirm
that he was a boy. The notes indicated that Alex told the doctor that he knew he was a girl but
wanted to be a boy.
The report of one of the medical experts, Professor P, stated that Alex found menstruation
“extremely distressing” and that he was frightened of continued breast development. Alex told
Professor P that he was “angry with God” for trapping him in the wrong body.35 Professor P
described Alex as distressed and as being “very sad” and “miserable” with his situation for a long
time, and that he wanted to die. All expert witnesses agreed that Alex exhibited classic symptoms
of gender identity disorder.36
Reasons for the decision
Jurisdiction
In considering whether to make the orders sought, Nicholson CJ said that he must be firmly
satisfied upon clear and convincing evidence that the proposed treatment was in Alex’s best
interests. On the question of the Court’s jurisdiction to hear the application pursuant to section
67ZC of the Family Law Act, Nicholson CJ said he was satisfied that two considerations going to
jurisdiction justified the Court’s involvement in hearing the application. Those considerations
were:


whether Alex could give effective consent to the proposed procedure; and
the nature of the proposed procedure.
Gillick competence
Nicholson CJ then considered whether Alex was Gillick competent. On the issue of Alex’s capacity
to himself consent to the procedure, Nicholson CJ said that as a result of the High Court of
Australia’s pronouncement on Gillick competence in Re: Marion, he was required to consider
whether Alex had achieved “a sufficient understanding and intelligence to enable him or her to
understand fully what is proposed.”
Nicholson CJ referred to the medical evidence directed towards Alex’s understanding of the
proposed procedure and to the submissions of HREOC. Nicholson CJ concluded that the evidence
34
At [180].
At [95].
36
See discussion in Eithne Mills ‘Re Alex: Adolescent Gender Identity Disorder and the Family Court of Australia’
(2004) 9 Deakin Law Review 365 at 372.
35
12
did not establish that Alex had the capacity to decide for himself whether to consent to the proposed
treatment. He said “[i]t is one thing for a child or young person to have a general understanding of
what is proposed and its effect but it is quite another to conclude that he/she has sufficient maturity
to fully understand the grave nature and effects of the proposed treatment.”37 Nicholson CJ
distinguished the subject matter of the application in Gillick; namely, the use of oral contraceptives,
from that which was before him, and concluded that “[i]t is highly questionable whether a 13 year
old could ever be regarded as having the capacity” to consent to a procedure which would change
his sex.38 Ultimately however Nicholson CJ found that the issue of Gillick competency was
“academic”, because it would only arise were the court to refuse to provide authorisation for the
procedure and there was “uncontroverted evidence” before the court that the orders sought were
entirely consistent with Alex’s wishes and in his best interests.
In what was clearly obiter dicta, given that Nicholson CJ found that he did not need to make a
determination as to the jurisdiction of the court to override a Gillick competent minor’s decision to
either receive or refuse medical treatment, Nicholson CJ said that he doubted the correctness of the
submission put to him by HREOC that a court has no power to override the informed consent or
informed refusal of a competent child to medical treatment or, if it did, it should only be exercised
in extreme circumstances.
The nature of the proposed procedure – is court authorisation required?
Nicholson CJ then turned to the nature of the proposed procedure and specifically whether it was
one that required court authorisation. If not, Alex’s legal guardian was able to consent to the course
of treatment. Nicholson CJ referred to Hannon J’s decision in Re GWW and CMW in affirming that
the court’s permission is required in circumstances where there is a significant risk of making the
wrong decision and where the consequences of making a wrong decision are particularly grave.
Nicholson CJ agreed with Hannon J’s finding that the High Court of Australia in Re: Marion was
not confining procedures that required court authorisation to sterilisation alone, and indeed only to
surgical procedures. Nicholson CJ recorded that he had raised with the parties at any early stage of
the proceedings whether court authorisation was required, given that the first stage of treatment (the
suppression of puberty) was entirely reversible. Significantly, Nicholson CJ said that it was
“common ground” between the parties that the “staged clinical program” proposed for Alex should
be seen as one single treatment package. Nicholson CJ said:39
It is respectful of the assessment of Alex that emerges from the expert evidence and my own
interview with him. He is adamant in his deep and long held desire to suppress his biological
development as a female and to induce the presence of male characteristics. Compartmentalising the
stages of treatment for the purposes of these proceedings would have an air of unreality about it.
Nicholson CJ went on to say:
I think it would have been detrimental to Alex’s best interests for the Applicant to have viewed the
reversible treatment as within its authority as a guardian and only approached the Court when the
second stage was imminent.
37
Re Alex (2004) FLC 93-175 at [168].
At [173].
39
At [188].
38
13
In conclusion, Nicholson CJ said that it would be “prudent” for an application to be made pursuant
to section 67ZC at the outset of a clinical intervention, where the first stage of the treatment plan is
reversible but is nevertheless being undertaken in anticipation of commencing a further stage that
has irreversible features.
Nicholson CJ then turned to the issue of whether the proposed treatment was for the purpose of
‘curing a disease’ or ‘correcting a malfunction’. Were it found to be so, the court’s jurisdiction
pursuant to section 67ZC would not be invoked. Nicholson CJ said that the current state of
knowledge would not enable a finding to be made that the procedure was clearly one directed
towards curing a ‘disease’. His Honour found that the High Court of Australia in Re: Marion
sought to distinguish medical treatment that seeks to address disease in or malfunctioning of organs
from sterilisation, in circumstances where there is no abnormality or underlying pathology.
Nicholson CJ found that the application before him, and the issues raised by it, did not lend itself to
such a comparison. Ultimately, Nicholson CJ held that the Family Court’s authorisation was
required because of the “significant risks attendant to embarking on a process that will alter a child
or young person who presents as physically of one sex in the direction of the opposite sex, even
where the Court is not asked to authorise surgery.”40
The best interests of the child
Lastly, Nicholson CJ had regard to whether the orders sought would be in Alex’s best interests. In
so doing, Nicholson CJ placed “considerable weight” on Alex’s wish to undertake medical
treatment and the risks to him that might occur if authorisation was not granted. An additional
matter to which Nicholson CJ had regard to was the submissions of HREOC that article 8(1) of the
United Nations Convention on the Rights of the Child (“UNCROC”), which concerns children’s
right to preserve their identity, arguably included sexual and gender identity. Nicholson CJ agreed
with the submission as a matter of general principle and found that it weighed in favour of
authorisation being in Alex’s best interests. For the reasons contained in the judgment, Nicholson
CJ expressed himself as being satisfied to the requisite standard that he should make a declaration
authorising the administration of hormonal treatment. Orders in those terms, and ancillary orders
concerning Alex’s public identity, were duly made.
Responses to Re: Alex
Nicholson CJ’s decision has been described by North American academics Hazel Beh and Milton
Diamond as “important” and “noteworthy”; one which they contended offered international
guidance as to how to approach treatment issues and to serve a child’s best interests.41 In a similar
vein, Australian academics Eithne Mills42 and Kim Atkins43 wrote that the decision was one that
demonstrates the deployment of a practical and discursive conception of identity, rather than an
essentialist view according to which gender identity is regarded as a direct expression of bodily
sex44 and which sought to “bring Alex peace with regard to the incongruence between his phenomtype and male identity.”45
40
At [196].
Hazel Beh and Milton Diamond, ‘Ethical Concerns Related to Treating Gender Nonconformity in Childhood and
Adolescence: Lessons from the Family Court of Australia’ (2005) 15 Health Matrix 239 at 271.
42
Mills, above n 35.
43
Kim Atkins, ‘Re Alex: Narrative Identity and Gender Identity Dysphoria’ (2005) 14 Griffith Law Review 1.
44
Ibid.
45
Mills, above n 35, 373.
41
14
However, the decision was not without its detractors. Lawyer Rachael Wallbank, who subsequently
represented the parents of transgender young people in applications for permission for treatment,
described the decision as one that gave rise to “considerable concern” as a result of its reasoning
and its legal and public policy ramifications.46 In particular, Wallbank contended that:




the expert opinion in Re: Alex was limited to psychiatric opinion which adhered to the
“anachronistic” psychiatric/disorder model of transsexualism;
Nicholson CJ wrongly applied the principles of Re: Marion and Gillick in finding that Alex
was not competent to consent to the proposed procedure in his own right, insofar as
Nicholson CJ transformed the personal nature of the assessment to one applicable to any and
all children and young people in respect of the medical treatment of transsexualism;
Nicholson CJ erred in finding that the treatment proposed for Alex’s transsexualism was not
for the purpose of curing a ‘malfunction’ or a ‘disease’ and was therefore not therapeutic in
nature; and
Nicholson CJ failed to take account of the financial, emotional and child welfare
implications of the decision on the parents of children with transsexualism, and upon the
children themselves, in limiting and delaying access to treatment.
In essence, Wallbank argued that decisions about treatment for transsexualism should be made
privately and without “ongoing intrusion” by courts exercising a welfare jurisdiction. She stated:47
I submit that it is neither good medical practice, humane (to the child and his or her family) nor good
public policy that the medical treatment of each such child or young person be subject to the delay,
worry and cost of obtaining the approval of the Family Court of Australia. The additional financial
and other impositions involved in the process of court approval are likely to result in further
professional reluctance to diagnose, and further parental resistance to both diagnosis and treatment.
Wallbank was at pains however to emphasise that Nicholson CJ approached the matter with
“fundamental goodwill and open-mindedness”, which she described as “the distinguishing
characteristic of our Australian justice system which enables it to deal so well with diversity and
which provides its capacity to facilitate cultural maturation.”48
Decisions subsequent to Re: Alex
There have been a number of decisions subsequent to Re: Alex in which the Family Court’s
permission has been sought to perform a medical procedure. Most of these have been for the
treatment of gender identity disorder. An overview of the cases follows.
Re: Brodie (Special Medical Procedures: Jurisdiction) [2007] FamCA 776;
Re Brodie (Special Medical Procedure) [2008] FamCA 334
Re: Brodie concerned an application by the mother of an 11 year old child, Brodie, who was born
biologically female but who identified as male. The child’s mother sought the Family Court’s
authorisation to undertake Stage 1 treatment in the form of administration of a gonadotrophin
releasing hormone analogue to suppress puberty. No orders were intended to be sought with
respect to Stage 2 treatment until Brodie turned 16 years old. The application was resisted by
Rachel Wallbank, ‘Re: Kevin in Perspective’ (2004) Deakin Law Review 1.
Ibid 30.
48
Ibid 33.
46
47
15
Brodie’s father, although he did not participate in the substantive hearing. The Court was assisted
by the Victorian Office of the Public Advocate, which appeared as amicus curie (“friend of the
court”), by an independent children’s lawyer, and by a family report which the court ordered to be
prepared. Following the High Court of Australia’s decision in Minister for Immigration and
Multicultural Affairs and Immigration v B,49 delivered subsequent to Re: Alex, the Court had to
consider the threshold issue of jurisdiction. This was because Brodie’s parents were unmarried and
therefore, as Brodie was not a “child of a marriage”, the question of whether there was a provision
in Part VII of the Family Law Act that would create a Constitutional “matter”, to which the Court’s
jurisdiction under section 67ZC would attach, arose. Carter J found that the authorisation for Stage
1 treatment fell within the realm of parental responsibility for Brodie and that the exercise of
parental responsibility was the relevant Constitutional “matter”. Brodie’s mother was therefore
found to have standing to bring the application and the Court had the jurisdiction and power to hear
and determine the application pursuant to section 67ZC.
In a separate judgment, Carter J delivered her reasons for authorising Stage 1 treatment for Brodie.
Carter J accepted the unanimous evidence from the conference of expert witnesses that for as long
as Brodie needed to “battle” to obtain treatment, he would be focussed on the “battle” and not on
tackling issues associated with his gender identity. Carter J took into account the submissions of
the independent children’s lawyer, which were that Brodie was adamant that he wanted to live his
life as male. Carter J accepted medical evidence that Brodie’s conception of adulthood was of
being a man with a wife and children, which Carter J found to be “mature concepts” and thoughts.
When considering the issue of the likely effect of change on Brodie, Carter J accepted the
independent children’s lawyer’s submission that Brodie was at risk of self-harm if the court’s
authorisation of Stage 1 treatment was not forthcoming. On the issue of whether the proposed
procedure was one intended to correct a ‘disease’ or ‘malfunction’, Carter J said “I am not satisfied
that the treatment plan is a procedure “for the purpose of treating a bodily malfunction or
disease”.”50
Carter J took into account the impact of oestrogen suppression on Brodie’s bone density and that
Brodie’s growth would be affected, such that he would be small in stature as a male. Nevertheless,
in consideration of the constellation of ‘best interest’ factors, Carter J found that authorising
treatment would be in Brodie’s best interests and that, conversely, his best interests would be
jeopardised if authority was withheld.
Re Inaya (Special Medical Procedure) (2007) 38 Fam LR 546
Re Inaya concerned an application by the parents of a one year old child for a bone marrow
transplant to be performed to assist her baby cousin, who suffered from infantile oesteopetrosis.
The evidence was that the child would likely die without the transplant being performed. In
departing from Hannon J’s earlier decision in GWW & CMW, Cronin J found that court
authorisation was not required to undertake the procedure. Cronin J considered the High Court of
Australia’s decision in Re: Marion and distinguished bone marrow harvest from non-therapeutic
sterilisation on the basis that a marrow transplant was not irreversible and, although it required a
general anaesthetic, it was not considered major surgery. Cronin J found that the medical evidence
demonstrated that the procedure was a routine operation with minimal risks and commonly
49
50
(2004) 219 CLR 365.
Re Brodie (Special Medical Procedure) [2008] FamCA 334 at [41].
16
performed on young children. Cronin J nevertheless went on to make orders authorising the
procedure to be performed, such orders being necessary because of a conflict between federal and
state laws. In arriving at a determination that the procedure was in the child’s best interests, despite
the subject of the application not being the recipient of the bone marrow harvest, Cronin J gave
considerable weight to evidence as to the psychological impact on the child if she learned that her
cousin had perished because of her non-involvement in a procedure that could have potentially
saved her cousin’s life.
Re: Alex (2009) 42 Fam LR 645
Re: Alex was the second occasion upon which an application was made to the Family Court for
medical treatment for Alex, related to his gender identity. The application was made by Alex’s
legal guardian and was for a double mastectomy. Alex was close to 17 years old at the time the
application was made and had progressed to taking testosterone following his 16th birthday. Bryant
CJ made the orders authorising the double mastectomy to be performed at the conclusion of the
hearing in October 2007 and reserved her judgment, with reasons being delivered in 2009.
After discussion with Alex’s independent children’s lawyer, Bryant CJ identified the three issues
upon which expert evidence was required as:



why surgical intervention was being proposed, given that Alex was less than 18 years of
age but could make his own decision without needing the consent of the Court upon
turning 18;
the urgency associated with the proposed surgical procedure; and
Alex’s views and level of understanding about the nature and effect of the proposed
procedure.
Concurrent expert evidence was given in respect of those three issues. That evidence, which was
not contradicted, was that Alex had experienced some breast development in the interregnum
between the onset of puberty and his guardian being authorised to consent to treatment for gender
identity dysphoria. Alex found the presence of female breasts to be a “major and distressing
preoccupation”, which he sought to address by wearing a compression garment and by lifting
weights so as to minimise their appearance. One medical expert described Alex as feeling that his
life was “extremely inhibited” by his breasts, in that he could not go swimming or play sport
because of them and that his social life was restricted. Alex was described as having been
“persistent and consistent” in his wish over previous years to have his breasts removed. The Court
was told that the benefits Alex thought would accrue to him as a result of having the surgery
performed were:





improved socialisation with his peers, to allow him to feel less self conscious about his
appearance and affirm his male identity;
being able to wear his school uniform without undergarments and in greater comfort;
playing sport and participating in school athletics carnivals and inter-school sporting
competitions;
participating comfortably in school social events;
interacting with girls in a developmentally and age appropriate way, such as engaging in
hugging; and
17

managing the adjustment to the next stage in his gender change process within existing and
familiar support structures.
Bryant CJ first considered the issue of whether Alex had the capacity to consent to the surgery
himself. Bryant CJ said that this was an issue of “special importance in the circumstances of this
case and in light of Alex’s age, the strength of his views and the greater recognition that is being
accorded in the international law community to the right of children to exercise agency in decisions
affecting them.” Bryant CJ noted that no submissions were directed towards the issue of Alex’s
Gillick competence. Bryant CJ said:51
In my view it is abundantly clear that Alex is an extremely mature and considered young man, with
the capacity for sophisticated reflection upon the implications of undertaking chest surgery. The
evidence of the medical witnesses is that Alex has a good understanding of the process of bilateral
mastectomy and the advantages and disadvantages of the procedure. Alex has shown initiative in
undertaking independent research into the procedure and into gender reassignment/sex affirmation
surgery more broadly and, as he has told me through the independent children’s lawyer, Alex will
continue to research his condition.
Bryant CJ summarised the position as follows:52
[S]ince mid-2004, when hormone therapy commenced, the development of secondary female
characteristics in Alex has been suppressed. This year Alex commenced taking testosterone and that
has caused the development of male physical features. Essentially therefore, Alex has lived as a
male for three and a half years. The evidence is that there have been significant improvements in
major facets of Alex’s life following the commencement of hormonal treatment and that Alex has
responded positively to the physical changes arising from the administration of testosterone. Alex
has neither exhibited nor verbalised anything other than an enduring wish to continue to live as a
man. Alex believes, fervently, that breast surgery will be of great assistance to him in achieving this
end. Alex is an intelligent, thoughtful, reflective and creative young person with well developed
adaptive skills.
Bryant CJ concluded:53
Taking all of these matters into account, I am not satisfied that Alex is not Gillick competent and
therefore unable to himself consent to the surgery. However, as the parties, the ICL [independent
children’s lawyer] and the intervenor have not led evidence nor made submissions on this matter, I
am reluctant to make a positive finding to that effect. The most appropriate course of action, it
seems to me, is for me to adopt the same approach as that of Nicholson CJ in the earlier proceedings,
which is to take the view that the issue of Gillick competence is academic unless I intend to make
orders not permitting the procedure. Alex’s maturity and likely Gillick competence however provide
further support for the orders I made.
Bryant CJ agreed with Nicholson CJ that the treatment regime proposed for Alex, which included
bilateral mastectomies to remove excess breast tissue, should be viewed as part of one ‘package’.
Bryant CJ said that in light of the fact that submissions were made to Nicholson CJ that Alex would
not undergo surgery prior to turning 18 years of age, the interventionist nature of the procedure, its
irreversibility, and the risks that attend any form of surgery, it was appropriate for the Court’s
permission to be sought.
51
At [143].
At [146].
53
At [147].
52
18
In considering whether the procedure would be in Alex’s best interests, Bryant CJ found that Alex’s
wishes were a “very important factor” in the application, and found that Alex had “consistently,
firmly and unwaveringly expressed the view that he wishes a bilateral mastectomy to be performed
and indeed the application for permission for surgery to be undertaken was made to give effect to
Alex’s wishes.”54 On the issue of the likely change in Alex’s circumstances upon undergoing
surgery, Bryant CJ found that the procedure was likely to have a positive psychological effect on
Alex. In all the circumstances, Bryant CJ had no hesitation in finding that authorising Alex to
undergo breast reduction surgery would be in his best interests.
Bryant CJ devoted the concluding part of her judgment to consideration of human rights law,
including the provisions of the International Covenant on Civil and Political Rights with particular
relevance to sex and gender diverse people, and those provisions of UNCROC with particular
relevance to transgender young people. Bryant CJ, assisted by HREOC’s Sex and Gender Diversity
Issues Paper, also referred to the Yogyakarta Principles. These principles were developed by a
group of human rights experts in 2006 and addressed a broad range of human rights standards and
their application to issues of sexual orientation and gender identity. Bryant CJ stated that although
no submissions were addressed to her specifically on the issue of the relevance of international
human rights law to the application before her (HREOC having been granted permission to
withdraw from the proceedings), the decision she had arrived at was consistent with international
human rights instruments.
Re: Bernadette [2010] FamCA 94;
Re: Bernadette (2011) FLC 93-463
In Re: Bernadette, an application was made by the parents of a 15 year old child who was born
biologically male for her to undergo Stage 1 and Stage 2 hormonal treatment, commencing after she
turned 16 years old, to assist her in living in her affirmed sex as female. Bernadette had identified
as female since the age of three years, where she consistently demonstrated what Collier J described
as female behaviour, preferences and traits. Since 2004, Bernadette had lived as a female in her
family, and publically. There was evidence before the Court from Bernadette’s treating child and
adolescent psychiatrist that Bernadette met the DSM-IV diagnostic criteria for Gender Identity
Disorder (Childhood). An independent children’s lawyer had been appointed for Bernadette and
the Director-General of the Department of Human Services and HREOC had been given permission
to intervene in the proceedings, without objection. Collier J made orders, by consent, authorising
Bernadette to receive hormonal treatment as sought by her parents at the conclusion of the hearing,
and otherwise reserved his decision. It was not argued by the applicants that Bernadette was
competent to consent to her own treatment.
Collier J commenced by recording the issues he was required to determine. By way of a minute of
order handed up by counsel for the applicants, these included important questions of law. In effect,
the applicants submitted that the 2004 decision of Re: Alex was wrongly decided and, if Nicholson
CJ had the evidence before him that Collier J had in Re: Bernadette, he would not have found that
there was a requirement to obtain court authorisation to commence hormonal treatment for gender
identity disorder. The applicants formulated a number of questions for determination by the Court,
which included the following:
54
At [167].
19


Does the parent of an adolescent minor and/or such minor (provided that such minor has a
sufficient understanding and intelligence to enable him or her to understand fully what is
proposed) have the authority to lawfully authorise medical treatment of that adolescent
minor to arrest the onset of the minor’s puberty (“Phase 1 Treatment”)55 in the course of the
medical treatment of the condition of transsexualism (also called gender identity disorder)
without an Order of a Court?
Does the parent of an adolescent minor and/or such minor (provided that the adolescent
minor has a sufficient understanding and intelligence to enable him or her to understand
fully what is proposed) have the authority to lawfully authorise hormonal medical treatment
for the adolescent minor to induce the secondary sexual characteristics of the adolescent
minor’s affirmed sex (“Phase 2 Treatment”) in the course of the medical treatment of the
condition of transsexualism (also called gender identity disorder) without an Order of a
Court?
In response, the Director-General submitted that the questions should be limited to Bernadette and
not be responded to as matters of general application. The Director-General argued that both
questions should be answered in the negative. HREOC submitted that the issues before the court
were “Is transsexualism a condition that requires treatment (as so referred to by the majority [in Re:
Marion] as ‘malfunction or disease’)? If so, is the proposed treatment in this case appropriately
carried out to treat the condition?”
HREOC submitted that both questions should be answered in the affirmative, with the effect that
Bernadette’s parents would be lawfully able to consent to treatment without an order of the court.
The independent children’s lawyer adopted in part the submissions of the Director-General as to the
issues to be determined.
Although Collier J accepted that there were issues arising in the case which may well be matters of
general interest and concern, he was of the view that it would be unsafe to determine the questions
raised as matters of general or theoretical application, as the evidence that his Honour had before
him was particular to the case.
Collier J said:56
To find as an apparent matter of general application that it was or was not a matter for parental
responsibility could be to do a disservice to other persons contemplating treatment. To say as a rule
of general application that parents could or could not authorise such treatment could mean that
parents without the full understanding, that the parents in this case clearly have, could make a
decision which was ill informed and may well have a disastrous long term affect [sic] on a child,
either by permitting or denying the child access to treatment.
Collier J then turned to consider the following issues:
The condition of the child
The applicants contended that transsexualism was not a malfunction or a disease but a natural
variation to be found in human beings where brain sex and genitalia are different. Collier J found
that the state of the evidence before him was not such that he could say precisely what caused
transsexualism or gender identity dysphoria. However, he accepted that the ‘Dutch material’ before
55
56
“Phase 1” and “Phase 2” treatment are the same as “Stage 1” and “Stage 2” treatment.
Re: Bernadette [2010] FamCA 94 at [68].
20
him appeared to clearly indicate that a person’s sexually identity was determined by their “brain sex”
and not by their genitalia or other aspects of their physical appearance or presentation.
The nature of the procedure or treatment
Collier J said he was satisfied that Stage 1 and Stage 2 treatment were part of a single treatment
package for transsexualism. He found that Stage 1 treatment was reversible and that Stage 2 was
reversible to the extent that if both stages had been entered, it would still be possible for Bernadette
to retain male characteristics. That Bernadette could cease or decline treatment at any time was a
matter Collier J said was of “some significance”. On the evidence, his Honour did not view
Bernadette’s loss of capacity to be a biological parent as something that diminished her wish to be
female.
The reason for which is it proposed that the treatment or procedure be carried out
Collier J found that the reasons for treatment were clear, and they were to enable Bernadette to live
her life “in that which she is absolutely positive is her true sex”.
The alternative course of treatment
Collier J was satisfied there was no proper and viable alternative course of treatment.
In addition to the concern his Honour had that other parents contemplating treatment for childhood
or adolescent transsexualism may not have the same depth of information and expert evidence that
Bernadette’s parents had, Collier J was also concerned about situations where there was a lack of
agreement between parents or guardians as to the proposed treatment. Accordingly, he found that
the principles developed by the High Court of Australia and pronounced in Re: Marion had
application in the case. Collier J said he was “satisfied that the majority judgment of the High
Court made it clear that the child’s bests interests is itself a limit of parental power.”
In discussing the distinction between therapeutic and non-therapeutic treatment, Collier J reiterated
that the evidence was unclear as to the cause of transsexualism. His Honour said there were two
opposing views: that transsexualism has a biological basis, or that it results from mental illness.
According to his Honour, there was expert opinion that the actual cause remains uncertain. His
Honour went on to record that there was criticism of attempts to treat transsexualism as a mental
illness and that “in this case none of the experts expressed a view that mental illness was a
satisfactory explanation.”57
Collier J then considered the various primary and additional ‘best interests’ factors. As judges had
before him, his Honour said he was satisfied that the child’s view should be given “serious weight”
and “taken into account appropriately”. Those views, Collier J found, were that Bernadette wished
to commence treatment. His Honour described those views as “well formed” and having been
strongly held over an extensive period of time.
Collier J then asked whether it was a case where he should permit the parents to authorise the
treatment for a child, with there being no need for the court to be in any way involved in the
decision.
Collier J said:58
57
58
Ibid [114].
Ibid [123].
21
I am not satisfied that the evidence before me establishes that there has been such a change in the
state of medical knowledge that I should find that I am able to disregard the views of the Stage 1 or
indeed of the former Chief Justice in Re: Alex. My concern is as to making the wrong decision as
was referred to by his Honour in Alex. The risk of making a wrong decision was a primary factor
influencing their Honours of the Stage 1 in Marion’s case.
His Honour went on to opine:59
I am satisfied there still remains grave dispute within the medical community as to the best treatment
that can be offered. I am satisfied that until there is a clear cut line of authority within the medical
profession, it would be difficult for parents to reach an informed conclusion in every case.
In conclusion Collier J said:60
…in all the circumstances in this case I am unable to say that the medical evidence presented to me
has demonstrated conclusively the cause of transsexualism so as to enable me to find that it is a
normally occurring factor of human development. I am thus not satisfied that on that test, that
transsexualism is a condition that falls within the range of matters that can be addressed and seen as
falling within the parameters of normal parental responsibility to authorise treatment.
Principally for that reason, his Honour decided that he would have to answer “no” to each of the
questions posed by the applicants.
Collier J’s decision was appealed to the Full Court of the Family Court of Australia.61 The orders
themselves were not appealed, given that they had been sought by the applicants and made by
consent. It was the finding of the trial judge that the court’s consent to treatment for Bernadette was
required, rather than treatment related decisions being within the purview of Bernadette’s parents as
part of their exercise of parental responsibility, that was the primary issue agitated on appeal.
Bernadette, who had turned 18 years of age prior to the Notice of Appeal being filed, was granted
permission to intervene in the appeal. The New South Wales Director-General applied to have the
appeal dismissed on the basis that Bernadette had turned 18 and the court therefore did not have
jurisdiction to entertain the appeal, by reference to the terms of placitum (xxii) of section 51 of the
Australian Constitution, which refers to “infants”. At the invitation of the Court, the New South
Wales Attorney-General intervened in the proceedings to make submissions addressed to that issue.
The Full Court found that there was a lack of any indication that the welfare power contained in
section 67ZC of the Family Law Act was to be exercised in a different manner from every other
aspect of the Court’s powers in relation to children, the effect of which was to confine the capacity
of the Court to make parenting orders to children under the age of 18 years. The Full Court found
that the appeal was incompetent and granted the application for its dismissal.
Re: Sally (Special Medical Procedure) [2010] FamCA 237
Re: Sally involved an application by a hospital to perform a gonadectomy on a 14 and a half year
old adolescent. At birth, Sally appeared to be a healthy baby girl and she was raised as female.
When she was 11, Sally detected lumps in her groin. Some years later, tests revealed that Sally had
an XY genotype, did not have a uterus, and had gonads present in her pelvis. Sally was diagnosed
with 5-alpha-reductase deficiency. Sally, despite identifying as a female for the whole of her life,
59
Ibid [124].
Ibid [125].
61
Re: Bernadette (2011) FLC 93-463 per Bryant CJ, O’Ryan and Strickland JJ.
60
22
was therefore genetically male. Sally and her parents supported the hospital’s application to
remove her gonads and thus all traces of what Murphy J described as her “maleness”. The
Department of Communities of the relevant state appeared at the hearing as amicus curiae. No
independent children’s lawyer was appointed. However, the hospital was granted leave to rely
upon an affidavit deposed to by Sally herself and it was through these means that Sally’s views
were brought to the attention of the Court.
Murphy J said that an important issue for the Court was for it to be satisfied that Sally was not
suffering from a gender identity disorder as that term was described in the DSM-IV. Murphy J said
that “[t]he reason for that is that, if such a condition was present in Sally, the underlying issue for
her would be one of psychology, as distinct from, perhaps, a condition involving [an] invasive and
irreversible medical procedure.”62 The Court accepted expert evidence that Sally was not suffering
from that condition and that she had a clear identity as female.
Murphy J went on to consider whether the procedure was “necessary”, as understood by reference
to Nicholson CJ’s decision in Re: Alex. Murphy J found that Sally was a “thoughtful and mature”
young woman who understood the reasons why the procedure was recommended and also
understood that there might be risks associated with it, in both the physical and psychological sense.
Murphy J did not however find that Sally was competent to consent to the surgery herself. In
making that finding Murphy J agreed with the submission made by counsel for the Department that,
notwithstanding the findings of the court with respect to Sally’s maturity and understanding, the
Court would require a “very firm foundation” before arriving at the conclusion that a 14 and a half
year old child would be competent to consent to undergoing a procedure Murphy J described as “as
significant as this”. Murphy J said:63
When the ramifications of the procedure are taken into account, including, of course, its
irreversibility in particular, and the potential ramifications which it might have on Sally’s
psychological health, both currently and in the future, I would be extremely reluctant to proceed on
the basis that she is Gillick competent.
Murphy J considered alternatives to surgery, such as its postponement until Sally turned 18 years
old. Murphy J relied upon medical evidence about the benefit to Sally’s physical and emotional
welfare to have her gonads removed and said that any delay in surgery would cause him to have
significant concerns.
In considering the ‘best interests’ factors, Murphy J opined that:64
Plainly enough, the surgery will involve significant changes of one sort or another. I have earlier
outlined the possible benefits and detriments of those changes as referred to by the treating medical
practitioners and I have concluded that the likely effect of the changes brought about by the
prospective surgery are more likely to be in Sally’s best interests than if the surgery does not occur.
Murphy J said in conclusion, in referring to the court’s jurisdiction and discretion:65
Despite the fact that all parties are in agreement about a proposed course of action, and those who
agree include the child, the parents and the relevant medical agency, this court nevertheless retains
62
Re: Sally (Special Medical Procedure) [2010] FamCA 237 at [36].
Ibid [52].
64
Ibid [68].
65
Ibid [71]-[72].
63
23
an independent obligation to consider all of the matters directly relevant to Sally’s best interests in
arriving at a conclusion about whether this invasive and irreversible procedure ought be permitted.
In my view, all of the evidence points clearly and unequivocally to a conclusion that Sally being
permitted to undergo that procedure is in her best interests and I propose to so order.
Re: Sean & Russell (Special Medical Procedures) (2010) 44 Fam LR 210
Re: Sean & Russell was also an application before Murphy J; in this instance to perform a
gonadectomy on two young children from two different families, both of whom suffered from a rare
medical condition known as Denys-Drash Syndrome. The syndrome was associated with a high
risk of bilateral Wilm’s tumours (cancer of the kidneys), a risk of germ cell tumours (i.e. cancer) of
the testes, and kidney problems, including the likelihood of complete renal failure by the age of four
years. Genetic males with abnormal and intra-abdominal gonads, as both Sean and Russell were,
were at the highest risk of malignancy. As Murphy J described it, “the essential proposition in
respect of each child is that the development of the cancers, considered highly probable by reason
of the syndrome, can be prevented by the surgical removal of both kidneys and both testes.”
The applicant was the hospital seeking to perform the surgery, the respondents were Sean and
Russell’s parents, and the Department of Communities participated in the proceedings as amicus
curiae. There was no independent children’s lawyer appointed.
The specialist medical opinion was that the procedure should be performed. However, a by-product
of the procedure would be to render both children infertile. Murphy J quoted from the High Court
of Australia’s decision in Re: Marion that “… the decision to sterilise a child [is] a special case
requiring authorisation from a source other than the child's parents”. Murphy J summarised the
position at law following Re: Marion as being that an appropriate party could seek orders in respect
of guardianship by reference to the jurisdiction and power of the Court to make orders in respect of
that matter. If the matter related to a medical procedure involving sterilisation of a non-Gillick
competent child, jurisdiction was found within the “welfare jurisdiction” of the court, similar to the
parens patriae jurisdiction of the courts of common law.
Turning then to amendments to the Family Law Act following the decision in Re: Marion,66
Murphy J posed the following questions:



Do the subsequent legislative amendments and the current Act alter the requirement for
some medical procedures to be authorised by a court?
If so, does this court have jurisdiction to grant any such application and does that
jurisdiction have any relevant limits?
Where is that jurisdiction to be found?
After reviewing the relevant statutory amendments, Murphy J found that “in my view, the words of
the High Court in Marion’s Case remain the law; namely that the decision to sterilise a child is a
special case requiring authorisation from a source other than the child's parents.”
Murphy J confirmed that it was recognised in Marion’s Case that there is an “unclear dividing line”
between cases which must be authorised by a court and those which may not. Murphy J said “[i]t is
by no means fanciful that parents may seek to have the court give approval (or disapproval) to a
66
Family Law Reform Act 1995 (Cth), Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
24
decision which falls within the limits of their parental responsibility but over which they have
agonised and may be ambivalent.” As Murphy J also observed, doctors can legitimately claim to
need certainty when the consequences of proceeding in the absence of proper authority are
potentially very severe.
Murphy J provided an overview of the matters that in his view were dictated by legislation and
principle. They were:






parents (or guardians) do not have, as an incident of their parental responsibilities, the power
to authorise or give consent on behalf of their non-Gillick competent children to medical
procedures or treatment of a type analogous to that in Marion’s Case;
for children (or others) who are not “Gillick competent”, it remains the law that court
authorisation is required in respect of medical procedures or treatment that can be properly
so categorised;
the Family Court has jurisdiction to hear such an application and the jurisdiction is to be
found in section 67ZC;
for children, or others who are not “Gillick competent”, medical procedures or treatment not
analogous to that in Marion’s Case – even those involving serious and irreversible
consequences including sterilisation – can, and in most cases should, be authorised by
parents (or guardians) as part of their “parental responsibilities”;
the Family Court has jurisdiction (found in Part VII) and power (also found in Part VII) to
make “parenting orders” in respect of any such issues, because they deal with “any other
aspect of parental responsibility” and do not seek to enlarge powers which those with
parental responsibility otherwise have by law; and
the power to make parenting orders of that type includes the power to make orders akin to
declarations, including where no inter-parties dispute exists between parents or guardians.
Murphy J then sounded a cautionary note about the limits of the Family Court’s role in making
decisions about medical treatment for non-Gillick competent children. Murphy J said:67
Where parents are properly and appropriately exercising parental responsibility as the Act and the
law contemplate that they will and should; where there is no disagreement between them and where
there is no “solely therapeutic” element to the proposed procedure, the dilemmas and decisions for
parents and doctors alike are predominantly medical (true though it is that those medical decisions
are likely to also involve difficult moral and ethical and parental considerations).
In my view, the law should tread very lightly in seeking to intrude in, or impose itself upon, those
decisions. It would in my respectful view be sad indeed if the courtroom was to replace a caring,
holistic environment within which approach by parents and doctors alike could deal with the
(admittedly extremely difficult) medical and other decisions that need to be made.
Murphy J went on to consider whether the procedure required court authorisation. His Honour
found that the proposed surgery was to treat a bodily malfunction or disease and was essential from
a medical point of view. Murphy J said that the surgery could “not remotely” be considered
“therapeutic” in the sense used in Re: Marion; nor could he discern any conflict between the parents’
intentions and those of the children, should they reach an age and state of maturity sufficient to
constitute Gillick competence.
67
Re: Sean & Russell (Special Medical Procedures) (2010) 44 Fam LR 210 at [90]-[91].
25
Murphy J ultimately found that a decision about surgical intervention fell within the scope of
parental powers and thus court authorisation was not required. However, as an application had been
brought, Murphy J said that if the Court’s jurisdiction was properly invoked and the orders sought
were within power, the Court should go on to decide whether the orders should be made, with the
best interests of the children as the determinant.
Murphy J then considered what orders would be in the best interests of Sean and in the best
interests of Russell. Murphy J found that, on balance, the proposed treatment was more consistent
with securing Sean’s best long term outcomes, both physically and psychologically, than any of the
alternatives. Murphy J reached the same conclusion with respect to Russell, who unlike Sean had
not experienced renal failure.
Re: O [2010] FamCA 115368
Re: O involved an application by parents of a 16 year old adolescent who was born genetically male
but who wished to receive treatment to assist his transition to his affirmed sex as female. The
application was brought jointly with O’s treating hospital. The Victorian Office of the Public
Advocate accepted the court’s invitation to intervene but the Department of Human Services did not.
The court appointed an independent children’s lawyer to assist it in determining what orders, if any,
would be in O’s best interests. The court also ordered that a family report be prepared.
The orders sought in the application were four-fold:
(a)
O to undergo a procedure known as “electro-ejaculation”, for the purpose of collecting his
semen for storage;
(b)
O to be administered implants of a drug to effectively suppress continuing male pubescent
development;
(c)
subsequent oral application of oestrogen, to develop secondary female characteristics; and
(d)
any other hormonal and/or psychiatric or psychological treatment recommended by O’s
treating endocrinologist and psychiatrist.
Dessau J took what she described as the “unusual step” of announcing her decision at the
conclusion of the hearing without providing reasons or formally pronouncing orders. Dessau J did
so in light of the urgency for O to know the outcome and as a compassionate measure for his
parents.
O’s developmental issues did not present themselves until mid-primary school and he was
subsequently diagnosed with Autism Spectrum Disorder at the age of 12. Some two years later, O
was seen by his mother dressing in his sister’s clothes. He also confessed to accessing information
on “cross-dressing boys” on the internet. At the age of 15, O informed his parents that he had had
an “epiphany” and wanted to become female. His pubertal development as male, which was
advanced, was causing him significant distress and he began articulating suicidal thoughts. O was
subsequently found to meet the diagnostic criteria for gender identity disorder as contained in the
DSM-IV. O’s consultant child and adolescent psychiatrist described O’s condition as one which
Dessau J’s reasons for decision use the male pronoun and thus references to “he” rather than “she” appear in this
discussion.
68
26
caused clinically significant distress and impairment in his social, emotional and other areas of
functioning.
Dessau J then turned to the nature and purpose of the proposed treatment. Her Honour observed
that “[i]t is important to note that although the medical practitioners referred to the two-stage
process, they were clear that it is part of one package of treatment.”69 In discussing the reversibility
of the procedure, Dessau J noted that Stage 1 was fully reversible whereas Stage 2 involved the
development of female breasts, which would only be reversible upon a mastectomy being
performed.
The nature and degree of risk to O of having medical procedures performed was described by
Dessau J as being “at the heart of the case”. Dessau J found that O’s mental health would be placed
at serious risk if he did not receive the two-stage treatment for which the Court’s approval had been
sought. Dessau J said that she was satisfied that the risks facing O, in the event that the treatment
did not proceed, had been properly weighed by the experts against any risks arising from treatment.
Dessau J then discussed, in considerable detail, whether O was capable of giving informed consent
to the proposed two-stage procedure. Dessau J found:70
Despite the combined complexities of O’s youth, the depression and anxiety that he has suffered,
and the symptoms of Asperger’s syndrome, the consensus amongst all the professionals was that he
is capable of making and has made an informed decision about the procedures. That accords with
his parents’ assessment.
In conclusion, Dessau J said:71
The responsibility of decision-making in parenting cases, requiring the Court to project a child’s best
interests into the future, always weighs heavily, but never more heavily than when considering a
special medical procedure, part of which will ultimately be irreversible or at least, difficult to reverse.
In this case, the heavy onus is lightened in some respects. I have the uncontradicted evidence of a
range of experts, recognised at the top of their respective fields. There is a thorough assessment by
an experienced Family Consultant who has been able to confirm that these exquisitely difficult
decisions about O are being made by two loving parents in a close and caring family. Finally, all the
evidence points to O himself being a bright and resourceful young person, considered and
determined in articulating his steadfast desire to live a fulfilling life as a female, and suffering
terribly and at serious risk unless that can be achieved.
I am satisfied that the orders sought by the applicants are the orders that will promote O’s best
interests.
Re: Rosie [2011] FamCA 6372
Re: Rosie involved an application by the parents of a young person born biologically female who
sought Stage 2 treatment (by way of short and long acting testosterone drugs) for gender identity
disorder, to enable her to live in her affirmed sex as male. Rosie was aged almost 17 years at the
time the application was brought.
69
Re: O [2010] FamCA 1153 at [54].
Ibid [77].
71
Ibid [108]-[110].
72
Dessau J’s reasons for decision use the female pronoun and thus references to “she” rather than “he” appear in this
discussion.
70
27
Rosie had been diagnosed with gender identity disorder, as defined in the DSM-IV, of “significant
severity”. Rosie’s treating psychiatrists, her endocrinologist, the family report writer and the
independent children’s lawyer all supported treatment for Rosie to induce masculine development.
Dessau J recorded that, at the age of two years, Rosie had asked her father whether she could have
an operation to give her a penis. From the age of three Rosie insisted upon being called by a male
name and wore only boys’ clothing. Dessau J’s judgment documents Rosie’s “distress and
discomfort” at having to identify as female or expose her body. This became acute when Rosie
commenced puberty. Rosie ceased attending school because she could no longer stand being in an
environment in which she felt “alienated, uncomfortable and left out from the other boys.” Rosie
ultimately was referred to a specialist psychiatrist with whom she could discuss her gender identity
issues.
Medical evidence before the court was that, in line with the United States Endocrine Society’s
treatment guidelines, it would be appropriate to administer cross-sex hormones to Rosie because of
her age, thereby bypassing Stage 1 of the treatment regime. Short and long acting injections of a
testosterone drug were recommended in order to minimise potential side-effects. The evidence was
that hormone treatment would cease Rosie’s ovulation and menses, but the effect on the ovaries
would be fully reversible if treatment was stopped. Rosie’s fertility would be temporarily impaired,
but in a fully reversible way. The Court was told that some irreversible effects of cross-sex
hormone treatment included the growth of facial and body hair, deepening of Rosie’s voice and
increased muscular development.
Dessau J accepted the experts’ unanimous opinion that Rosie’s psychological health and general
wellbeing were at risk without the treatment. The evidence of one expert, which was accepted by
the court, was that the benefits of the proposed treatment for Rosie would make her feel that she
was being taken seriously and supported in her desire to live as a male. She would also experience
satisfaction from undergoing male sex development. Rosie told the expert that she would have
increased ambition and “a greater will to live” after receiving treatment. The family report writer
said that Rosie would be unlikely to receive any benefit from refusing or delaying hormonal
treatment, particularly given the “excruciating psychological pain” she had faced over her gender
issues.
Dessau J then considered whether Rosie was competent to provide her own consent for the
administration of cross-sex hormones. Dessau J said that Rosie not only agreed to the treatment,
but she had researched it and was “ardently” seeking it. Dessau J found that Rosie’s parents and all
the experts agreed that she was capable of making an informed decision about it. Dessau J noted
the evidence of Rosie’s gynaecologist that Rosie appeared to be “Gillick competent” and able to
make an informed decision. The family report writer considered that although Rosie had significant
psychological issues, that did not impair her ability to make her own decision about the proposed
course of treatment. In summary, Dessau J found that Rosie was capable of making an informed
decision about the proposed treatment.
Dessau J said in conclusion:73
Every decision about a child carries a heavy weight of responsibility with it. An order that will
result in a young person living in one gender when born into another carries a particular onus. That
73
Re: Rosie [2011] FamCA 63 at [110].
28
onus is considerably lightened in this case, by the level of expertise in those treating Rosie, the
cautious approach towards treatment that they propose, the reversible nature of much of the
treatment, Rosie’s unwavering views and her age, and the support of her parents who have exhibited
a laudable capacity to put her interests ahead of their own.
Dessau J made the orders as sought by Rosie’s parents.
Re: Jodie [2013] FamCA 62
Re: Jodie involved an application by the mother of a 12 year old child born biologically male for
authorisation to consent to Stage 1 treatment for gender identity disorder on an interim basis, which
would have the effect of suppressing puberty. As part of the final orders sought, Jodie’s mother
applied for a declaration that “Gender Identity Disorder (including but not limited to all hormone
and other treatment known as “Stage 1 Treatment” and/or “Stage 2 Treatment”) is not a “special
medical procedure”.” The father was a respondent to the application but did not appear at the
hearing. The Minister, Families South Australia, was invited to participate in the proceedings but
advised the Court that he did not intend to object or appear. An independent children’s lawyer was
appointed and both Jodie’s mother and the independent children’s lawyer appeared at the hearing of
the interim application for the administration of Stage 1 treatment.
Jodie was diagnosed with gender identity disorder (transsexual type, male to female) when she was
eight years old. Her family, friends, educators and professionals had referred to her by a female
pronoun since she was seven years old. When she was ten, Jodie enrolled in a new school where
she was known exclusively as female. The evidence before the court was that Jodie showed signs
of anxiety and depression upon the commencement of puberty, and, according to one expert report,
she would “become at major risk of developing distress, depression and self-loathing should she
have to experience a body becoming more masculine.” She was considered to be at “significant
risk” of self harm. The medical experts recommended the immediate administration of puberty
supressing medication, with treatment to continue until Jodie was aged 16 years, when it was
considered she could decide whether she wished to undertake more “definitive” treatment.
Dawe J noted that the expert evidence was that Stage 1 was a fully reversible treatment. With
respect to the orders sought for Stage 1 treatment on an interim basis (it being contended on a final
basis that neither Stages 1 or 2 were procedures which attracted the “special” jurisdiction of the
Court), Dawe J said:74
Because Stage 1 (seen without the proposed Stage 2) could be seen as outside the type of treatment
which would require the special medical procedures approval by this Court, an interim order may be
made simply confirming that the mother, having sole parental responsibility of the child, is
authorised to make that decision. The alternative is that the Court finds that it is a special medical
procedure which requires the Court to give approval to the mother having such authority.
…
Jurisdiction exists to make the interim order, whether it is considered to be an order which confirms
that the mother has such parental responsibility, or whether it is an order which falls within the
special medical procedure requirements and thus specifically authorises the mother to consent to the
procedure.
74
Re: Jodie [2013] FamCA 63 at [96], [98].
29
Dawe J found that the medical evidence emphasised the benefit to the child of the commencement
of treatment and the significant disadvantage and risk to the child if the treatment is not carried out.
The evidence of one medical expert was that “…without puberty suppression treatment [Jodie] will
look more and more masculine and this will increase the sense of feeling different, isolated and
disconnected from her peers.”
On the issue of whether Jodie was capable of making an informed decision about her treatment,
Dawe J said that “[t]he evidence from the mother and the reports of the experts consulted provide
strong evidence that the child “demonstrates an understanding of the broad nature of the treatment
proposed.””75 Dawe J concluded with the observation that “[t]he evidence strongly supports the
finding that the child has expressed strong views that she wishes to proceed with treatment as soon
as possible.”76
Dawe J found that there was “compelling evidence” before the court that it was necessary for
Jodie’s psychological and emotional health that Stage 1 treatment commence immediately. Dawe J
made the interim orders sought by the mother.
Re: Lucy [2013] FamCA 518
Re: Lucy involved an application by a government department, which was Lucy’s legal guardian,
for authorisation for Lucy to commence Stage 1 treatment for gender identity disorder. Lucy, who
was aged 13 years at the time the application was heard, was born genetically and biologically male
but identified as female. The expert evidence was unanimous that Lucy met the criteria for gender
identity disorder contained in the DSM-IV. As Lucy had no living parents, there was no respondent
to the application. Murphy J did not appoint an independent children’s lawyer but granted a lawyer
leave to be heard on Lucy’s behalf.
Lucy had entered puberty at the time the application was brought and the treatment proposed was
said to be urgent in order to prevent bodily changes that would be so significant as to require
surgery to reverse. Murphy J observed that an effect of the treatment would be to postpone any
more extensive treatment, and particularly that with reversible features, until Lucy was Gillick
competent. Murphy J recorded that all parties, including Lucy’s lawyer, accepted that although
Lucy had age-appropriate intelligence, she was not competent to consent to Stage 2 treatment on
her own behalf.
Murphy J distinguished the comments made by Nicholson CJ in Re: Alex pertaining to the need for
court authorisation in circumstances where a child wished to embark on a process “that will alter a
child or young person who presents as physically of one sex in the direction of the opposite sex”
from the case before him, because it was only Stage 1 treatment for which authorisation was being
sought and that was entirely reversible. Further, Murphy J said:77
I consider, respectfully, that the passages referred to present too narrow a picture of ordinary
treatments and procedures which fall outside of the narrow band of “special cases” to which the
High Court of Australia in Marion’s Case refer. The passages to which I have earlier referred from
the judgment of Brennan J, his Honour’s judgment read as a whole, and a reading of the plurality’s
judgment as a whole present, in my view, a much wider ambit for ordinary parental/guardian consent
75
Ibid at [122].
Ibid at [128].
77
Re: Lucy [2013] FamCA 518 at [94].
76
30
than that which can be given for treatment solely to address “disease” or to correct some
“malfunction” (albeit that those expressions are used within the judgments in Marion’s Case). The
ambit might also become wider as a result of, as Nicholson CJ said, “… the march of science
overtak[ing] the perimeters of the settled law.
Murphy J had regard to the comments made by Brennan J in Re: Marion that treatment
“…administered for the chief purpose of preventing, removing or ameliorating … a psychiatric
disorder” fell within the ordinary ambit of parental consent, provided such treatment is
“…appropriate for and proportionate to the purpose for which it is administered.” Accordingly,
Murphy J proceeded to give consideration to whether the proposed treatment was both appropriate
and proportionate.
On the issue of the appropriateness of the treatment, Murphy J expressed himself as satisfied on the
entirety of the evidence that the treatment was appropriate and viable, and that it would prevent
changes that would exacerbate the psychological issues Lucy confronted. There were two matters
that Murphy J considered to be “extremely important”: the fact that the procedure was entirely
reversible, and the fact that Stage 1 treatment was designed to hold puberty in abeyance until Lucy
was Gillick competent. Cumulatively, taking all relevant matters into account, Murphy J found that
court authorisation for Stage 1 treatment was not required. In so finding Murphy J said:78
… I am satisfied that the treatment proposed, namely LHRH Analogue Therapy is “…appropriate
for and proportionate to the purpose” of treating the child’s Gender Dysphoria and that it is intended
to be administered “for the chief purpose of preventing, removing or ameliorating … a psychiatric
disorder.”
Consequently, I do not consider that the nature of the treatment of itself falls into the category of
case that requires the authorisation of this Court.
Murphy J went on to explain that although in his view authorisation for Stage 1 treatment was not
required, that did not mean that no order at all should be made. Murphy J said that if jurisdiction
has properly been invoked, the Court should proceed to hear and determine the issues brought
before it within jurisdiction, including making orders about the exercise of parental responsibility.
Murphy J opined that there may well be good reasons why a declaration in relation to a specific
aspect of the powers and responsibilities of a parent or guardian should be made if doing so was in
the subject child’s best interests. He said that there may be features of a decision in respect of
medical treatment other than required authorisation that render it in a child’s best interests for an
order to be made. For example, Murphy postulated that a person concerned with a child’s care,
welfare or development may have doubts as to whether a proposed medical procedure consented to
by the parent or parents was in fact in the child’s best interests. Recourse would therefore need to
be had to the Court to clarify that aspect of parental responsibility.
Murphy J said he was persuaded that he should make an order if he was satisfied that the proposed
treatment and the making of the order was in the child’s best interests. Murphy J said that although
it could be argued that the making of an order that the law did not require to be made served the
best interests of persons other than the child (such as the child’s treating team, or Lucy’s legal
guardian), Lucy would indirectly benefit from those with legal, moral, ethical and parental decision-
78
Ibid at [99].
31
making responsibility for her being provided with greater certainty. Murphy J thus proceeded to
make the orders sought in the application.
Re: Sam & Terry (Gender Dysphoria) [2013] FamCA 563
Re: Sam & Terry involved an application on behalf of two 16 year olds who had been diagnosed
with gender dysphoria as meeting the diagnostic criteria contained in the DSM-5. Both applications
sought Stage 1 and Stage 2 treatment, to be administered simultaneously. Sam was biologically
male but identified as female and Terry was biologically female but identified as male. As Murphy
J found that as the issues raised in both applications were effectively identical, the applications
should be heard and determined together. The Director-General of the relevant government
department intervened and made submissions in support of the applications. Leave was granted to
rely on an affidavit sworn by Terry and Sam, on the basis of their age, the condition from which
they suffered and the issues which required determination. For similar reasons, Terry was
permitted to be in Court with his parents. Murphy J did not appoint an independent children’s
lawyer because:



the expert evidence was unanimous that the proposed treatment was urgently required;
the children’s views were reflected in the proposed treatment and had been put before the
Court via affidavits; and
the applicants sought orders consistent with the treatment proposed by the experts.
Terry, who also had Asperger’s Syndrome, had been wearing gender neutral clothes at his
insistence since the age of three. He refused to wear dresses and would wear shorts if forced to
wear a girl’s school uniform. At the age of 12, Terry started talking about being a boy and stating
that he hated being a girl.
In 2011, when Terry was aged 14, he was taken to a hospital emergency department after Terry’s
father noticed what appeared to be lacerations on Terry’s chest. It transpired that these were
abrasions caused by Terry binding his breasts with electrical tape. A tentative diagnosis of gender
dysphoria was then made.
During counselling sessions, Terry admitted identifying as male for as long as he could remember.
He told the counsellor that he became distressed and agitated during menstruation and refused to
use sanitary products, preferring pull-up nappies so that he would not have to have contact with his
genitals.
Terry had been attending a new school since 2012, where he identified and dressed as male.
Murphy J recorded that Terry’s peers at his new school believed him to be male.
The Court was told that delaying treatment for gender dysphoria until Terry was 18 would
exacerbate his anxiety and depression, increase his risk of self harm, and affect his social skills and
development of a peer network. Murphy J received evidence as to the reversibility of both stages of
treatment proposed for Terry and noted that Stage 2 had irreversible effects. There was also
evidence as to the risks associated with testosterone use, including breast or uterine cancer,
erythrocytosis and liver damage.
In Sam’s case, her parents became aware that she was self-harming in 2010-11. In 2012, Sam was
referred to a specialist, to whom she disclosed that she had feelings of gender dysphoria since the
32
age of five. Sam told the specialist she had thought of removing her male genitals and had harmed
her genitals on one occasion. Sam was subsequently found to satisfy the criteria for gender
dysphoria found in the DSM-5.
Expert evidence was tendered, to the effect that a delay or refusal of treatment for Sam would
increase her level of psychological distress and could precipitate a psychological decompensation.
The Court was also told that the treatment would reduce mental health problems, reduce social
anxiety and improve social functioning.
As with Terry, the court received evidence about the reversibility of Stage 1 and the irreversible
effects of Stage 2 on Sam, including a long-term adverse effect on fertility. The Court was also told
about the risks associated with oestrogen treatment, including blood clots, gallstones, abnormal
liver function, weight gain, high blood triglyceride levels and cardiovascular disease.
Murphy J first considered whether the court had jurisdiction to entertain the application and power
to make the orders sought, in the absence of what he described as “those two broad justifications for
intervention in the rights, duties and responsibilities inherent in responsible parenting”, namely the
right of the state to intervene when children are at risk and disagreement about orders affecting
children.
Murphy J said that the right and authority of parents to make decisions in respect of medical
treatment or procedures was subject to two broad limitations: where a child was Gillick competent
and where a procedure was sufficiently “special” as to require Court authorisation.
Murphy J then considered the issue of Sam and Terry’s Gillick competence. Murphy J noted that
neither of Sam and Terry’s treatment specialists considered them to be Gillick competent and the
Department did not put a contrary position. Accordingly, Murphy J found that although Terry and
Sam each demonstrated a significant degree of maturity and insight into their respective conditions,
there was no other evidence suggesting that they possessed the requisite sufficiency of
understanding to consent to their own treatment.
Murphy J discussed the nature of the proposed treatment. He considered the comments Nicholson
CJ made in Re: Alex about the types of proceedings that fell within the Court’s ‘welfare’
jurisdiction and those that did not. Murphy J respectfully disagreed with Nicholson CJ that a
finding that a particular condition falls outside those described by the majority in Re: Marion as “a
special case” would lead to a finding that the treatment would “thereby not [be] within the
jurisdiction of this Court”. Murphy J pointed out that a dispute about a procedure that did not fall
within the jurisdiction of section 67ZC would need to be determined as parenting orders relating to
an aspect of parental responsibility. As his Honour pointed out, the Court must authorise treatment
in the former case but may make a particular parenting order if in the child’s best interests to do so.
Murphy J also expressed doubt as to whether the category of cases that did not require court
authorisation was as narrow as Nicholson CJ suggested. In particular, Murphy J said that Nicholson
CJ did not appear to have regard to what Brennan J said in Re: Marion about psychiatric conditions,
in respect of which (according to Brennan J), “therapeutic” treatment could be administered without
court authorisation. Murphy J summarised the principles that apply to determining whether a
particular type of medical treatment requires court authorisation in the following terms:79
79
Re: Sam & Terry (Gender Dysphoria) [2013] FamCA 563 at [83].
33
Reference to the judgments in Marion’s Case mark court authorisation as necessary in respect of a nonGillick-competent child in a “special case” which is determined by reference to the following factors:

Treatment which does not involve “preventing, removing or ameliorating a cosmetic
deformity, a pathological condition or a psychiatric disorder”;

Treatment which is inappropriate or disproportionate having regard to the cosmetic
deformity, pathological condition or psychiatric disorder;

Treatment given other than for the “chief purpose” of preventing, removing or
ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder;

The “urgency” of the proposed treatment;

Where there is the combination of a “significant risk of making the wrong decision, either
as to a child’s present or future capacity to consent or about what are the best interests of a
child who cannot consent” and where the “consequences of a wrong decision are
particularly grave”.
Murphy J said that it was not possible to be didactic about the types of cases requiring authorisation
and those which did not. Speaking about gender dysphoria specifically, Murphy J said:80
…cases involving treatment for Gender Dysphoria may not require court authorisation because the
nature of the treatment is required to ameliorate a psychiatric disorder and the nature of the
proposed treatment is such that the risk of error and the consequences for the child are eliminated or
alleviated because the treatment is “reversible” (see, for example, Re Lucy). Other cases of Gender
Dysphoria may, by reference to those or similar relevant factors, require authorisation.
Turning then to the treatment proposed for Sam and Terry, Murphy J found that Stage 1 did not
require court authorisation. Murphy J described it as “plainly therapeutic” and sought to be
administered to ameliorate a psychiatric disorder. As it was also completely reversible, Murphy J
found that the risks associated with mis-diagnosis were low and thus the consequences of the
treatment could not be described as “grave”.
By reference to the evidence before him as to the international practice guidelines and the absence
of alternative treatments and the nature and severity of the manifestations of the condition suffered
by each child, Murphy J considered Stage 2 treatment to be “appropriate and proportionate” to the
purpose of “removing the condition”. Unlike Nicholson CJ in Re: Alex, Murphy J did not believe
there was any real likelihood that either Sam or Terry would re-consider their gender identity.
Murphy J said that were that to have occurred, the signs would already have been evident. Murphy
J noted that Sam and Terry were continuing to receive professional psychological assistance, and
that Sam was a member of a trans-gender support group. Further, Murphy J recorded that both
would be monitored throughout Stage 2 treatment, and that the treatment could be stopped, or
modified, if it was causing Sam and/or Terry distress, or if their conditions changed to the extent
that Stage 2 treatment was no longer warranted.
Murphy J then said:81
80
81
Ibid at [85].
Ibid at [98].
34
All of those factors point, in my view, to the treatment being classified as “therapeutic” and I am
not prepared to dismiss it as such by reason of the nature of the condition or because the Stage 2
treatment might be but a step in a later, post-competence or post-childhood, process of wide-ranging
and extensive treatment and procedures.
However, Murphy J stated that in his view, whether a procedure was therapeutic or not was only
one factor the High Court of Australia required to be taken into account. Murphy J said that the test
was whether the procedure was therapeutic, in tandem with the purpose of the treatment and its
potential consequences.
Murphy J found that the risks associated with Stage 2 treatment, in terms of irreversibility and
possible side effects, were “significant”. Murphy J went on to say that “…when the consequences
are expressed as being steps on the path to changing gender, the consequences can be described as
grave.”82
Murphy J found that court authorisation was required for Stage 2 treatment. His Honour considered
whether making orders with respect to Stage 2 treatment would be in Sam and Terry’s best interests.
Murphy J took account of relevant ‘best interests’ factors separately for Sam and for Terry, and in
both cases found, by reference to the totality of the expert and other evidence, that the proposed
treatment was in Sam and Terry’s best interests. Murphy J made orders in terms of a declaration
that court authorisation for Stage 1 treatment was not required but to avoid the appearance of doubt,
Murphy J also made orders authorising Sam and Terry’s parents to consent to Stage 1 treatment on
their behalf. Murphy J made a declaration that the court’s authorisation for Stage 2 treatment for
gender dysphoria was required and, somewhat unusually, went on to make a declaration that Sam
and Terry’s parents were authorised to consent to Stage 2 treatment on their behalf.
Re: Jamie at first instance
Re: Jamie [2011] FamCA 248
Introduction
Re: Jamie involved an application by the parents of a child aged 10 years and 10 months at the date
of hearing (March 2011) for Stage 1 and Stage 2 treatment. Jamie was born physically male but had
been identifying as female from a young age. The orders sought were for:
(a)
The administration of puberty suppressant hormones, such as implants of Zoladex
(a GnRH agonist) at intervals and at a dosage as may be determined as necessary to
achieve suppression of Gonadotrophins and testosterone to pre-pubertal levels
under the guidance of Jamie’s treating medical practitioners including but not
limited to Dr G, (Endocrinologist) and Dr C (Psychiatrist);
(b)
Additional treatment of oestrogen as may be considered appropriate by Jamie’s
treating endocrinologist, currently being Dr G (Endocrinologist) and in consultation
with and on the written advice of Jamie’s treating Psychiatrist, currently Dr C
(Psychiatrist).
82
Ibid at [101].
35
In determining the application, the Court was assisted by an independent children’s lawyer for
Jamie, who arranged for the preparation of an urgent family report. Both the independent children’s
lawyer and the report writer were supportive of Jamie commencing Stage 1 treatment. The relevant
government department and the Office of the Public Advocate were invited to intervene in the
proceedings, particularly in light of Jamie’s age. Both declined to do so.
Dessau J made orders on 28 March 2011, at the conclusion of the hearing, granting the application
for Stage 1 treatment. Dessau J declined to make orders with respect to Stage 2 treatment. Her
Honour observed that Stage 2 treatment was irreversible in nature and, on the basis that the
treatment would not commence for another six years, when Jamie was aged 16, she could not
determine in 2011 what would be in Jamie’s best interests in 2017.
Background
Jamie began to identify as female when she was two and a half to three and a half years old. She
chose female orientated toys, began to identify with female characters on television or in movies,
and reportedly told her mother “Mummy, I don’t want a willy. I want a vagina.” The parents’
evidence was that when she started school in 2006, Jamie’s insistence that she was female increased
significantly. A ‘turning point’ came in 2007, when Jamie was adamant about wearing a ballgown
to a play. Jamie’s mother started buying her girls clothing after that time, which Jamie began
wearing at home. Jamie commenced attending specialist psychiatric appointments in October 2007
and was diagnosed with gender identity disorder in December 2007. The family started addressing
Jamie as a girl towards the end of 2008 and, in 2009, Jamie changed schools, where she was known
exclusively as female.
At the age of almost 11 years, Jamie had the pubescent development of a 14 year old male, which
was rapidly progressing. Jamie’s parents told the Court that this was causing Jamie a heightened
sense of anxiety about her future. Jamie’s mother deposed:83
If [Jamie] does not received [sic] the phase 1 treatment, she will very shortly develop obvious male
characteristics such as deepening of her voice, facial hair and other more masculine features which
will be permanent and will not be able to be reversed. At the moment [Jamie] can live comfortably
as a girl, is socially confident and suffers no teasing or social isolation. If male features become
obvious, I fear that [Jamie] will not easily be able to live as female.
…
I am concerned that if [Jamie] is again placed in a position where her biological gender is publicly
revealed or even questioned, she will regress emotionally, psychologically and academically. I am
very concerned by Dr [C’s] opinion that [Jamie] is likely to develop depression and will be at risk
of self harm.
Evidence before the court
Dessau J recorded that there was no dispute that the procedure for which Court authorisation was
being sought (namely a treatment package for gender identity disorder comprising a two-staged
regime) was a special medical procedure requiring court authorisation.
83
Re: Jamie [2011] FamCA 248 at [27].
36
Dessau J then turned to the matters contained in sub-rule 4.09(2) of the Rules.
Dessau J referred to the evidence of Dr C, who was satisfied of Jamie’s consistent and firm
conviction that she was a girl within the body of a boy, and that all the information indicated a
consistent female identification. Dr C concluded that there was no evidence of any physical or
genetic abnormality, nor of any other psychiatric disorder or major depressive or affective disorder.
Dessau J noted the Dr C had “no doubt” that Jamie met the criteria for the diagnosis of “childhood
gender identity disorder (transsexual type).” A second doctor prepared a report in relation to Jamie.
The doctor’s conclusion was that Jamie “meets DSM-IV Criteria for the diagnosis of Gender
Identity Disorder of childhood (302.6)”. An endocrinologist to whom Jamie was referred noted
Jamie as having “persistent and profound gender identity disorder of the transsexual type.”
The nature of the treatment proposed was, at the first stage, suppression of puberty through the use
of a gonadotrophin releasing hormone, which was sought on an urgent basis in light of Jamie’s
advanced pubertal development. Dessau J received evidence that the treatment would slow the
process of maturation and the growth plates of the long bones, arrest sperm production, and increase
bone mineral density. The second stage of the treatment, involving the administration of cross-sex
hormones, was to commence when Jamie turned 16 years old, consistent with the guidelines of the
United States Endocrine Society.
The Court had evidence before it that suppressing male puberty would prevent emotional and social
distress for Jamie. The Court was told that Jamie would be adversely affected by developing a
more male appearance, and it may have significant impact on her mood, self confidence and social
functioning. Stage 1 treatment was said to “minimise the risk” of Jamie developing depression,
anxiety and the related risk of self-harm and suicidal behaviour. The Court was informed that Stage
1 treatment was entirely reversible. The Court was told that part of the Stage 2 treatment that
warranted particular consideration was the introduction of oestrogen, which would cause breast
growth. If Jamie were thereafter to choose to live as a man, her breasts could only be removed by
surgery.
The Court was informed that an alternative of just a behavioural approach to treatment would be
unlikely to be beneficial for Jamie, and that Jamie would find withholding treatment as invasive
within itself.
The evidence of Dr C was that he was satisfied that Jamie had been able, at an age appropriate level,
to understand the consequences of continued suppression of puberty, the later treatment with
oestrogen, the possibility later of developing breasts, and of the surgery to create a vagina.
However, Dr C concluded that Jamie did not have the level of maturity to be responsible for a
decision of such gravity, even though she possessed a good understanding of the process involved
and the potential risks and benefits. The family report writer told the court that although Jamie did
not have the maturity and cognitive ability to fully understand the long-term realities and
consequences of her decisions, it appeared that she had “a very good understanding” of her gender
identity and treatment, and of what was involved in the treatment she was requesting.
On the question of Jamie’s competence to consent to Stage 1 treatment, Dessau J said:84
84
Ibid 106.
37
…the answer is that she probably can. Whilst I take that into account, I agree with Dr C that at
Jamie’s age, she still needs to be guided by her parents’ decision. The finding however is clear, that
Jamie herself has a good understanding of and ardently seeks the treatment to start straight away.
There was no dispute that Stage 1 treatment was necessary for Jamie’s welfare. There was a
difference of opinion, however, about Stage 2. Dessau J summarised that as follows:85
The decision now as to whether Stage 2 of the treatment, in five or six years, will be necessary for
Jamie’s welfare, is a more difficult one. The family report writer recommended that the court’s
approval for that treatment should be deferred until closer to the time when the decision needs to be
made. That is the course urged by the ICL. The parents, supported by the doctors, urged that it be
seen as two stages of the one proposed treatment and that approval should be given now for both of
those stages, rather than requiring the expense of further proceedings.
Dr C’s evidence was that Jamie’s welfare is likely to be promoted if she knows that she will have
control over the decisions in relation to her own body and identity when she is older, without the
need to return to court. Both he and Dr G emphasised that no decision would be made in relation to
Stage 2 of treatment for another five to six years, and then it would only proceed if Jamie were
seeking the treatment, and the medical practitioners agreed that it would be in her best interests.
Reasons for the decision
In arriving at her decision, Dessau J took into account Jamie’s “strong and consistent views that she
wants to commence treatment.” Dessau J described Jamie as sufficiently mature, intelligent and
informed for considerable weight to be attached to her wishes. Dessau J said:86
Jamie’s long-standing wishes, the fact of her close family members being able to support her needs,
and the real risks to Jamie if this treatment were not commenced, assisted me in reaching the
conclusion that the Stage 1 treatment was in Jamie’s best interests, and needed to commence as a
matter of urgency.
Whether or not to make orders with respect to Stage 2 treatment was a matter that caused Dessau J
more difficulty. Dessau J found, in line with her own decisions and those made by other judges, the
two stages of treatment should be viewed as one treatment plan. However, Dessau J said she was
“equally satisfied” that whether the two stages of the one treatment plan should be approved at the
same time depended on all the circumstances. In the circumstances of the case, Dessau J was
unable to make a determination that the second stage of treatment, which would not commence
until 2016 or 2017, would be in Jamie’s best interests. Dessau J said:87
The parents and doctors presented the case for approval at this point on the basis that if Jamie wants
the relevant treatment when she is older and her parents and doctors consider it appropriate, then it
should occur. On the other hand, if Jamie does not want the treatment then she will be supported by
her parents and doctors, and the treatment will not occur. With respect, that dichotomy fails to deal
with a wide and potentially far more complex spectrum of possibilities between those two clear
positions. It also fails to fully appreciate the court’s role in cases of special medical procedures.
The argument that the Stage 2 treatment will only be embarked upon if Jamie seeks it, and her
parents and doctors support it as in her best interests, overlooks the court’s role. The court is
85
Ibid at [112]-[113].
Ibid at [119].
87
Ibid at [126]-[127].
86
38
required to approve a special medical procedure. The two-phased medical procedure in this case
requires approval, even if the child, her parents and doctors already agree, as they do in this case.
While acknowledging Jamie’s parents’ preference not to return to court as “entirely
understandable”, Dessau J said that she could not determine in 2011, when Jamie was still only
aged ten, what was likely to be in Jamie’s best interests in 2016 or 2017. Dessau J said that it was
instead “… appropriate for a judge to consider those circumstances closer to that time.”
Re: Jamie on appeal
Re: Jamie [2013] FamCAFC 110
Re: Jamie was the first case where the Full Court of the Family Court had the opportunity to
undertake a comprehensive analysis of earlier authorities, including that of the High Court of
Australia in Re: Marion and Nicholson CJ in Re: Alex, in the context of an application for
authorisation to undertake medical treatment for gender dsysphoria. It is therefore a highly
significant decision in the context of the limits of the Family Court’s welfare or supervisory
jurisdiction.
Background, grounds of appeal and parties to the appeal
Jamie’s parents subsequently appealed Dessau J’s orders to a three-member bench of the Full Court
of the Family Court.88 Each member of the bench delivered separate judgments. As Bryant CJ
recorded in her reasons, the appeal was unusual insofar as it raised issues not agitated at trial and
could only be ventilated on appeal because they concerned a point of law. Jamie’s parents did not
challenge Dessau J’s orders, which they had sought and which were being complied with. Their
case was that the Court did not have jurisdiction to authorise the parents to consent to treatment, as
it fell within the exercise of parental responsibility. The grounds of appeal were as follows:
1.
That, contrary to the view expressed by the learned trial Judge, treatment of the condition
described as “childhood gender identity disorder” with which “Jamie” was diagnosed is not
a special medical procedure which displaces the parental responsibility of the appellants to
decide upon the appropriate treatment for their child.
2.
That Ground 1 be considered and allowed notwithstanding that no such submission was
made to the learned trial Judge, and her Honour proceeded on that basis that:- “There was no
dispute in this case that the procedures proposed fell within the definition of special medical
procedures” (Judgment [at first instance] paragraph 33).
3.
Further and in the alternative to Ground 1, once the diagnosis of childhood gender identity
disorder was established and accepted and the treatment approved, the learned trial Judge
erred in law and the exercise of discretion in concluding that the treatment for the disorder
should be the subject of a further application to the Court when the “Stage 2” is about to
commence.
The Full Court found that the gravamen of the appeal was whether treatment for childhood gender
dysphoria was a treatment for which court authorisation was required. If it was not, the appellants
88
Re: Jamie [2013] FamCAFC 110 per Bryant CJ, Finn & Strickland JJ.
39
submitted that ground 3 would not need to be considered. If authorisation was found to be required,
ground 3 went to the issue of the divisibility of the treatment regime and which stages of treatment
required authorisation. As Bryant CJ said:89
The appeal has particular importance because it has potential relevance for a much wider range of
children than just Jamie, whose parents are the appellants in this case. This is because the main
issue is whether the treatment (proceeding in two stages) is a medical procedure (Secretary,
Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s
case”)) for which consent lies outside the bounds of parental authority and requires the imprimatur
of the court.
The orders sought on the appeal were declaratory, to the effect that treatment for childhood gender
identity disorder was not a special medical procedure that attracted the jurisdiction of the Family
Court under section 67ZC of the Family Law Act. Alternatively, the appellants sought
authorisation to consent to Stage 1 and Stage 2 treatment.
The independent children’s lawyer appointed by Dessau J was a party to the appeal. Although the
relevant public authority declined the invitation to intervene at the hearing, the authority filed an
application seeking to intervene in the appeal. The intervention application was the subject of a
separate judgment by the same Full Court bench, who were called upon to decide whether the
public authority should be involved in the appeal at all and, if so, whether as an intervener and
therefore a party to the proceedings, or as amicus curiae. Ultimately, in the decision of Re: Jamie,90
the Full Court permitted the public authority to intervene on a limited basis, such that the authority
was confined to making written and oral submissions about ground 1 of the appeal. The AHRC
also intervened without objection.
Reasons for the decision
As earlier mentioned, the three members of the Full Court bench delivered separate reasons for
judgment, although all three agreed with the outcome.
Bryant CJ
In her consideration of ground 1 of the appeal, Bryant CJ posed two questions: ‘is childhood gender
identity disorder a bodily malfunction or disease as defined in Marion’s case?’, and ‘should Re:
Alex be followed?’
On the question of whether childhood gender identity disorder is a bodily malfunction or disease,
Bryant CJ commenced by rejecting the submission of the public authority that pharmacotherapeutic treatment sought for childhood gender identity disorder did not treat the psychological
imperative at the heart of the condition. Bryant CJ said:91
…in my view, that is exactly what it does. If the condition involves self-identity of a different
gender from the biological gender with which one is born, then the treatment can be fairly said to
address the imbalance of the patient’s self-identity with some, at least, of its bodily representation. In
my view, it is not, as the submissions of the public authority propose, the alteration of an otherwise
89
Ibid at [5].
Re: Jamie (2012) FLC 93-491.
91
Re: Jamie [2013] FamCAFC 110 at [67].
90
40
healthy body to accommodate a psychological imperative, but rather it is the alignment of the body
with the person’s self-identity.
Bryant CJ described the distinction as “critical”. Bryant CJ said the submission by the public
authority assumed a normative state; departure from which was abnormal. Bryant CJ referred to the
decision on Chisholm J in In Re Kevin (Validity of Marriage of Transsexual) which found that
transsexualism should be seen as an example of diversity in human sexual formation, rather than as
an aberration or departure from the norm. Bryant CJ said it was therefore readily understandable
that people with transsexualism were concerned about psychiatric diagnoses of gender disorder.
Bryant CJ said however that it was not an issue that she needed to determine for the purpose of the
appeal, given that gender identity disorder was a psychological condition contained in the DSM-IV
(and as gender dysphoria in the DSM-5).
After considering the High Court of Australia’s decision in Re: Marion, Bryant CJ said that in her
view it was clear that the majority was dealing exclusively with the question of sterilisation, and
particularly with an intellectually disabled child incapable of giving consent. Bryant CJ observed
that Brennan J, who dissented in part, was the only member of the High Court of Australia who
referred to “a pathological condition or a psychiatric disorder”. Although she did not explicitly say
so, it is clear Bryant CJ was answering the first question in the negative.
Bryant CJ then turned to the question of whether Re: Alex should be followed. Bryant CJ pointed
out that it was the propositions that emerged from Re: Alex, rather than the outcome, that should be
considered. Her Honour did so on the basis that the applicant in that case was Alex’s legal guardian
and it therefore may be correct to hold that court authorisation is required, whatever the other bases
for arriving at the decision.
Bryant CJ considered Nicholson CJ’s decision in detail, noting that the parties in Re: Jamie
approached the case somewhat differently from the way that it was put in Re: Alex, with respect to
matters such as whether the Court’s permission was required, the divisibility of the treatment
regime and the child’s capacity to consent to treatment. Bryant CJ speculated that Nicholson CJ
may have reached a different conclusion about capacity had he viewed Stage 1 separately from
Stage 2. Bryant CJ said that, in her view, the evidence was clear that Stage 1 was a reversible
process and, unlike Nicholson CJ, Bryant CJ did not think that Stage 1 could be described as
“invasive, permanent and irreversible”.
Bryant CJ said that it was possible that the majority in Re: Marion did not have in contemplation
that a psychiatric disorder would fall within a group of cases for which court authorisation for
treatment would be required. However, her Honour saw no reason to limit the High Court of
Australia’s observations to physical disease, particularly as Brennan J directly addressed the issue
of psychiatric disorders. Bryant CJ concluded:92
Thus where the question is whether the treatment relates to a disease or malfunctioning of organs,
including psychological or psychiatric disorders, then, in my view, if the treatment is in response to
a disorder, even a psychological or psychiatric one, it is administered for therapeutic purposes. For
that reason alone, in my view, the treatment at Stage 1 for gender identity disorder would not fall
within the category of cases which the High Court of Australia was considering in Marion’s case.
92
Re: Jamie [2013] FamCAFC 110 at [98].
41
Bryant CJ also observed, in obiter, that it appeared that the “novelty” of the condition described by
Nicholson CJ was no longer supportable.
Bryant CJ then turned to the submission by the public authority that there was a significant risk of
making the wrong decision, and thus the principles of Re: Marion were applicable. Bryant CJ
found that the evidence in the case was “overwhelmingly indicative” of the proposed treatment
being a common one. To the extent that there were differences of opinion about treatment, Bryant
CJ said that as long as none of the contemplated courses of treatment were “invasive, permanent
and irreversible”, the treatment would not require the Court’s approval on that ground alone.
Bryant CJ said it was also important to identity that, unlike in Re: Marion, it was unlikely that
parental interest would be in anything other than the welfare of the child.
In summarising her findings in respect of ground 1 Bryant CJ said:93
In summary, I conclude that Stage 1 treatment of childhood gender identity disorder is reversible, is
not attended by grave risk if a wrong decision is made, and is for the treatment of a malfunction or
disease, being a psychological rather than physiological disease. As such, and absent controversy, it
falls within the wide ambit of parental responsibility reposing in parents when a child is not yet able
to make his or her own decisions about treatment.
Bryant CJ then turned to ground 3, which concerned Stage 2 treatment.
Bryant CJ said in her view there was a “relevant distinction” between Stage 1 and Stage 2 treatment.
The reversibility of Stage 1 was described as a “significant issue”. Bryant CJ noted that the
appellant’s submissions stated that Stage 1 and Stage 2 should be dealt with together, but that their
submissions did not deal with another issue; namely, whether a child may be competent to consent
to Stage 2 treatment. Bryant CJ referred to the appellant’s oral testimony, which was that
assessments of Gillick competency should principally be for the clinician, with the Court only
becoming involved where there was a controversy or doubt about competence.
Bryant CJ noted the AHRC’s submissions about UNCROC and the Convention on the Rights of
Persons with Disabilities (“CRPD”). With respect to UNCROC, the AHRC submitted that it should
be used as “an interpretive aid” when considering Part VII of the Family Law Act. Further, the
AHRC said that in ratifying UNCROC, Australia has agreed that it would respect the
responsibilities, rights and duties of parents to provide appropriate direction and guidance to their
children in the exercise by children of their rights, in a manner consistent with children’s evolving
capacities. Bryant CJ recorded that there was High Court of Australia authority for the proposition
that principal legislation is to be construed so as to give effect to, and not to breach, Australia’s
international obligations.94 Bryant CJ said that as the Family Law Act and UNCROC share an
underlying common purpose — that being a concern that decisions are being made in children’s
best interests — it was appropriate to have regard to the relevant provisions of UNCROC. Bryant
CJ found that Articles 5 and 12 were particularly apposite on the question of Gillick competence.
After considering the spectrum of possibilities for the role of the Court, which the public authority
submitted ranged from a ‘hardline’ position of no role at all upon a finding of Gillick competence,
to the Court being required to authorise treatment irrespective of Gillick competency, Bryant CJ
93
94
Ibid at [108].
See Minister for Ethnic Affairs v Teoh (1995) 183 CLR 273.
42
said that in her view, if a child was Gillick competent, the Court had no role. Bryant CJ also noted
that Stage 2 treatment for gender identity disorder commenced at about the age of 16, which under
statute in some Australian jurisdictions, and in New Zealand and the United Kingdom, was the age
at which children were regarded as having decision-making autonomy over many medical treatment
decisions.
Bryant CJ said:95
In my view, it would be contrary to the Convention on the Rights of the Child, and to the
autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a
particular class of treatment, namely Stage 2 treatment for childhood gender identity disorder, that
disentitles autonomous decision-making by the child, whereas no other medical procedure does.
Bryant CJ saw no reason to read down Gillick, as discussed in Re: Marion, because of the nature of
the reatment for childhood gender identity disorder. In fact, Bryant CJ said that “of all the medical
treatments that might arise, treatment for something as personal and essential as the perception of
one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent
child should be given full effect.”
With “some reluctance” Bryant CJ concluded that she was bound by Re: Marion and that because
there was a significant risk of making the wrong decision as to a child’s capacity to consent to Stage
2 treatment, and because the consequences of a wrong decision would be particularly grave, the
Court’s authorisation was required. Bryant CJ said however that any such application would “only
need to address the question of Gillick competence and once established the court would have no
further role.” Bryant CJ postulated that the application would not need to be as extensive as an
application for the Court to authorise treatment. Bryant CJ said she could see no reason why any
other party would need to be involved, unless there was controversy.
Bryant CJ summarised the decision she had reached as follows:96
(a)
Stage 1 of the treatment of the medical condition known as childhood gender identity
disorder is not a medical procedure or a treatment which falls within the class of cases
described in Marion’s case which attract the jurisdiction of the Family Court of Australia
under s 67ZC of the Act and require court authorisation.
(b)
If there is a dispute about whether treatment should be provided (in respect of either Stage 1
or Stage 2), and what form treatment should take, it is appropriate for this to be determined
by the court under s 67ZC.
(c)
In relation to Stage 2 treatment, as it is presently described, court authorisation for parental
consent will remain appropriate unless the child concerned is Gillick competent.
(d)
If the child is Gillick competent, then the child can consent to the treatment and no court
authorisation is required, absent any controversy.
(e)
The question of whether a child is Gillick competent, even where the treating doctors and
the parents agree, is a matter to be determined by the court.
95
96
Re: Jamie [2013] FamCAFC 110 at [134].
Ibid at [140].
43
(f)
If there is a dispute between the parents, child and treating medical practitioners, or any of
them, regarding the treatment and/or whether or not the child is Gillick competent, the court
should make an assessment about whether to authorise Stage 2 having regard to the best
interests of the child as the paramount consideration. In making this assessment, the court
should give significant weight to the views of the child in accordance with his or her age or
maturity.
Finn J
Finn J commenced with a brief introduction to the matter.
Finn J discussed the term “special medical procedures”, which she noted did not appear in the
Family Law Act or Rules, was not used by the High Court of Australia in Re: Marion and nor by
Nicholson CJ in Re: Marion (No 2). Finn J said she preferred the term “medical procedure which
requires court authorisation”. Before turning to the grounds of appeal, Finn J also said that it was
important to note that Dessau J recorded that no one had taken issue with the diagnosis of gender
identity disorder in the proceedings before her and that no issue regarding the diagnosis had been
taken on the appeal.
Finn J described the issues raised by the appeal as “very significant”. Her Honour identified the
primary issue arising in the appeal as being whether court authorisation for treatment of gender
identity disorder was required under section 67ZC, or whether parental consent pursuant to section
61C was sufficient. The “subsidiary” issue identified by Finn J was, if court authorisation was
required, Dessau J erred in only ordering Stage 1 treatment. Finn J disposed of that issue by stating
that whether the two stages of treatment should be approved at the same time depended upon the
circumstances of the case and she did not consider that Dessau J erred in refusing to authorise Stage
2 treatment, having regard to her Honour’s reasons for doing so.
In discussing the primary issue arising in the appeal, Finn J commenced by saying “there
cannot…be any question” that where there is a disagreement in relation to proposed treatment
between the parents and/or their child or with the child’s treating doctors, an application to the
Court will be necessary. Unlike Bryant CJ, Finn J did not specify that the application needed to be
brought pursuant to section 67ZC of the Family Law Act. However, Finn J noted that the appeal
was solely concerned with cases where there was no disagreement.
Finn J extracted the relevant discussion from Re: Marion. Her Honour observed that although the
High Court’s decision was concerned with the sterilisation of an intellectually disabled child, the
principles of Re: Marion had been applied in a number of other cases where other serious forms of
medical treatment were proposed. Finn J noted that the High Court of Australia considered it
necessary to draw a distinction between therapeutic and non-therapeutic procedures, although the
High Court acknowledged that the distinction could be uncertain. Finn J concluded by saying that
there was nothing in the majority’s judgment which could be taken as limiting their observations to
only a physical, as opposed to a psychiatric or psychological, malfunction or disease. Her Honour
then quoted from Brennan J’s decision, which referred to psychiatric disorders. Despite the
submissions made by senior counsel for the Public Advocate, Finn J said “…I am not persuaded
44
that Brennan J’s definitions should not provide some assistance in considering the difficult issues
raised by this case.”97
In her conclusions about Stage 1 treatment, Finn J said that, given the evidence before Dessau J of
the child’s condition and the risks faced by her if she did not receive Stage 1 treatment, that stage of
the treatment could be seen as therapeutic. Furthermore, Finn J found that the treatment’s
reversibility meant that the High Court of Australia’s concerns about a wrong decision being made,
and the resulting grave consequences flowing from such a decision, did not arise. As there was also
no dispute between the child, her parents or her doctors, Finn J was satisfied that Stage 1 treatment
did not require court authorisation.
Stage 2 was described as presenting “greater problems”, if only because it was irreversible in nature,
at least without surgery. Finn J said:98
This consideration must, in my view, remain important, even when it is accepted that the treatment
can be categorised as therapeutic, and in this regard the concept of proportionality referred to by
Brennan J must come into play.
Finn J stated that the risks of a wrong decision and the grave consequences of a wrong decision, as
identified by the majority in Re: Marion, must exist in relation to Stage 2 treatment. Therefore, the
therapeutic benefits of the treatment must be weighed against the risks involved and the
consequences which arose from a treatment being irreversible. Finn J found that was a task that
was appropriate for a court.
However, Finn J observed that Re: Marion could be distinguished from Re: Jamie because there
was no prospect of the child in Re: Marion being able to consent to the procedure for which
authorisation was sought. In Re: Jamie, Finn J said that the child may be able to consent. The
question for Finn J then became whether it was for Jamie’s doctors and parents to make a decision
about Gillick competency, or whether it was a matter for the court. After noting the submissions of
the public authority and the AHRC that it was the Court that should make the decision, and in light
of what the High Court of Australia said about the risk of a wrong decision being made and the
grave consequences arising from a wrong decision, Finn J concluded that the question of a child’s
capacity to consent to Stage 2 treatment “must remain a question for the court.” In so doing, Finn J
expressed her reluctance at arriving at that decision, in light of the cost and stress of further court
proceedings, but explained that it had been made in light of the High Court of Australia’s
requirements.
Strickland J
In a succinct judgment prepared with the benefit of having read the draft reasons for judgment of
Bryant CJ and Finn J, Strickland J said that he concurred with the outcomes proposed by their
Honours and generally for the reasons set out in both judgments. In summary, Strickland J agreed
that on the evidence before the trial judge, Stage 1 treatment could be described as therapeutic.
Because Stage 1 was reversible, Strickland J found that none of the concerns of the High Court of
Australia about risk of the wrong decision, or grave consequences, arose. Strickland J said that,
97
98
Ibid at [178].
Ibid at [180].
45
given there was no dispute between the child, her parents or her doctors as to Stage 1 treatment, and
the form of the treatment, the treatment did not require the Court’s authorisation.
Strickland J agreed with Finn J that the therapeutic benefits of Stage 2 treatment needed to be
weighed against the risks involved and the consequences arising from the treatment being
irreversible. Strickland J said that, given the changes that would result for the child, court
authorisation should be required, except in cases where the child was able to consent to the
proposed treatment. Strickland J agreed that whether a child was capable of understanding and
giving informed consent to Stage 2 treatment was a threshold issue the Court must decide. This, his
Honour said, was because of the High Court of Australia’s requirement that courts authorise
medical treatment where there is a significant risk of the wrong decision being made as to the
child’s capacity to consent and where the consequences of such a wrong decision are particularly
grave.
The Full Court upheld the appeal and set aside Order 1 of Dessau J’s orders, which authorised the
parents to consent to Stage 1 treatment. Finn J explained that this did not reflect any error on behalf
of Dessau J but that the order was necessary because of the issue raised on appeal but not at the
hearing.
What principles can be discerned from Re: Jamie?
The following principles, which can be discerned from Re: Jamie, represent the current state of
Australian law with respect to the Family Court’s role in authorising treatment for gender dysphoria.






Court authorisation for medical treatment of non-Gillick competent children and young
people is required:

when the treatment is invasive, permanent and irreversible;

when the treatment is not for the purpose of curing a malfunction or disease;

where there is a significant risk of making a wrong decision; and
 where the consequences of a wrong decision would be particularly grave.
When deciding whether or not authorisation is required, the principle of proportionality
should be invoked, such that the therapeutic benefit of the proposed procedure should be
weighed against the risk of making the wrong decision and the consequences of that
decision.
A “disease” or a “malfunction” includes psychological and psychiatric disorders.
Authorisation for treatment for psychological and psychiatric conditions, including gender
dysphoria, can fall within the exercise of parental responsibility.
Stage 1 and Stage 2 treatment for gender dysphoria are part of the same treatment package
but can be considered separately and distinctly.
Stage 1 treatment for gender dysphoria is therapeutic in nature and is fully reversible. Court
authorisation for Stage 1 treatment is not required unless:

the child is subject to a guardianship order, or similar; or

there is disagreement between the child, the child’s parents or the child’s doctors (or
any of them) as to the need for, or the form of, Stage 1 treatment.
46






Stage 2 treatment for gender dysphoria is therapeutic in nature but has irreversible features.
Court authorisation for Stage 2 treatment is required.
Court authorisation for Stage 2 treatment is not required where a child is Gillick competent
(ie. the child understands the treatment and is able to give informed consent to it).
It is the Family Court’s responsibility to assess whether a child is Gillick competent and
therefore capable of consenting to Stage 2 treatment themselves.
Even where a child is found to be Gillick competent, Court authorisation is required for
Stage 1 and Stage 2 treatment for gender dysphoria where there is a disagreement between
the child, the child’s parents or the child’s doctors as to the need for, or the form of,
treatment.
Where court authorisation is required, the best interests of the child is the paramount
consideration in deciding whether or not to authorise the proposed procedure.
The wishes of the child should be given considerable weight in deciding whether or not to
authorise medical treatment, and on what conditions, commensurate with their age and
maturity.
What has happened subsequent to Re: Jamie?
Since the Full Court handed down its reasons in Re: Jamie, and as of May 2014, judges of the
Family Court have delivered three judgments in respect of applications for declarations of
competency and/or authorisation to consent to medical treatment for young people. Of those, two
involved transgender young people and one involved a young person with a disorder of sexual
development.
Re: Shane (Gender Dysphoria) [2013] FamCA 864
Re: Shane was the first decision to be handed down following Re: Jamie.
Re: Shane involved an application by Shane’s parents for authorisation to consent to Stage 2
treatment on Shane’s behalf for the purpose of treating gender identity dysphoria. Shane, who was
born biologically female but identified as male, was 16 years old at the time the application was
heard. The Director-General of the relevant government department intervened. Neither the
applicants nor the intervener sought the appointment of an independent children’s lawyer and
Murphy J did not consider that the circumstances warranted such an appointment being made.
Shane, his parents and the medical experts were unanimously in support of the proposed course of
treatment, which involved the administration of an intramuscular testosterone ethanthate.
Shane was described by his mother as having always perceived himself as a boy. He preferred boys’
clothing and his friends were all male. Shane attended school as male. Shane’s parents gave
evidence that, in 2012, he informed them that he was transgender. Shane was tentatively diagnosed
with gender dysphoria following a referral to a consultant child and adolescent psychiatrist. Notes
from Shane’s consultations, which were in evidence before the Court, were to the effect that Shane
had long-standing social problems, had emerging symptoms of depression, and found puberty to be
an uncomfortable, confusing and difficult time. The psychiatrist recorded that Shane reported a
“strong and persistent cross-gender identification”. Shane was found to fulfil the DSM-IV
diagnostic criteria for gender identity disorder. At the date of hearing, Shane was living exclusively
as male and had commenced Stage 1 treatment. The expert evidence before the court was that
47
Stage 2 treatment would reduce the risk of further mental health problems and that delay in
undertaking treatment would not “serve any purpose”, would significantly exacerbate symptoms of
social isolation and anxiety, and increase the risk of depression. According to Murphy J,
“significantly” Shane’s treatment team stated that there was no alternative treatment available to
Shane.
The two questions that presented themselves for Murphy J were:

Was Shane Gillick competent?

Did the proposed treatment require authorisation?
On the question of Gillick competence, the medical evidence was that Shane, who had also been
diagnosed with Asperger’s Spectrum Disorder, was an intelligent and thoughtful adolescent who
had substantial insight into his condition and the proposed treatment, but was not Gillick competent.
The legal representatives for the Director-General of the government department did not contend
otherwise. Murphy J found that the fact that Shane’s parents had brought the application for
authority to consent to Stage 2 treatment was confirmatory of the opinion that Shane was not Gillick
competent.
On the question of whether the proposed treatment required authorisation, Murphy J first recorded
that the Full Court in Re: Jamie unanimously held that Stage 2 treatment for gender dysphoria was a
treatment requiring Court authorisation. That being the case, Murphy J found that the criterion for
permitting authorisation was that the proposed treatment was in Shane’s best interests.
Murphy J then had regard to relevant ‘best interests’ factors. Murphy J said that the “very
significant risks” associated with the proposed treatment, including irreversible effects. However,
the expert evidence was that there was no alternative to the proposed course of treatment. In
conclusion, Murphy J found that “[t]he unanimous expert evidence, together with the evidence of
Shane’s parents and Shane’s own reports satisfy me that the proposed Stage 2 treatment is in
Shane’s best interests.”
Orders were made granting Shane’s parents’ application for authorisation to consent to Stage 2
treatment for Shane.
Re: Sarah [2014] FamCA 208
In Re: Sarah, the mother of a child aged close to 17 years born with 45X/46XY Turner Syndrome, a
disorder of sexual development, sought a declaration that Sarah was competent to consent to a
gonadectomy.
The orders sought in the application were:
1. A declaration or Order that the child [Sarah] born … 1997 (“[Sarah]”) has achieved a sufficient
understanding and intelligence to enable her to fully understand what is proposed and entailed
in the following treatment for 45X/46XY Turner Syndrome (a “disorder of sexual development”)
as to be capable of giving informed consent to such treatment:
(a) That under the guidance of [Sarah’s] treating medical practitioners including but not
limited to Dr [H] (Paediatric Endocrinologist) and Dr [Y] (Surgeon), [Sarah] undergo a
48
gonadectomy to remove her gonadal tissue that failed to develop into ovaries as a result
of her 45X/46Y Turner Syndrome.
(b) Such other surgical, hormonal, psychiatric or psychological treatment as may be
recommended by [Sarah’s] treating medical practitioners from time to time.
An independent children’s lawyer was appointed, who supported the application. Sarah, Sarah’s
parents, Sarah’s doctors and the independent children’s lawyer were all unanimous in their support
of the application, which would result in the medical procedure being performed without the need
for court authorisation. It was agreed that the risk of Sarah developing cancer was the primary
reason for performing the proposed procedure.
Sarah’s diagnosis occurred in late 2013. Sarah’s condition arose from “atypical development of the
sex chromosomes, the testes or ovaries, or the external genitalia.” Sarah did not have functioning
gonads and there was a risk of her developing a malignancy in the residual streaks of tissue in the
range of 10 to 15 per cent. The medical evidence before Macmillan J was that the proposed
procedure was not a sterilisation procedure as referred to in Re: Marion, as Sarah did not have
potential fertility or hormonal function from the gonads. On that basis, the medical evidence was
that the procedure was not a “special medical procedure”.
Macmillan J first turned to whether the procedure was one which required court authorisation.
Macmillan J said:99
The decision of the Full Court in Re: Jamie [2013] FamCAFC 110 (‘Re: Jamie’) makes it clear that
if the proposed treatment falls within the ambit of Marion’s case and if the child is not Gillick
competent – which will be discussed later in these reasons – the proposed treatment must be first
authorised by the Court. However, if the child in question is Gillick competent then that child can
consent to the treatment and it is not necessary for the Court to authorise that treatment.
Macmillan J said she was satisfied that the procedure was not one for which court authorisation was
required. She did so on two bases. The first was that the procedure was therapeutic. The second
was that the procedure was “relatively minor” and “non-invasive”, as it could be performed by
laparoscope and did not require overnight hospitalisation.
Macmillan J then addressed the issue of Sarah’s Gillick competence. Although Macmillan J found
that the issue was effectively moot in light of her finding that the procedure was not one for which
court authorisation was required, she acceded to senior counsel for the applicant’s request to make
the declaration sought by the applicant, for the avoidance of any doubt.
After reviewing relevant authorities as to the declaratory power of the Family Court, and finding
that there was power either under section 64B(2)(i) or section 67ZC of the Family Law Act to make
a declaration, Macmillan J said that she was satisfied that the declaration was in Sarah’s best
interests and made orders in the terms sought.
Re: Spencer [2014] FamCA 310
In Re: Spencer the mother of a 17 year old child, Spencer, who was born biologically female but
who identified as male, sought a declaration that Spencer was competent to consent to Stage 2
99
Re Sarah [2014] FamCA 208 at [14].
49
treatment for gender dysphoria (referred to as “gender identity dysphoria” in the reasons for
judgment). In the alternative, she sought the Court’s authorisation to consent to Stage 2 treatment
on Spencer’s behalf.
Spencer’s father supported the application, as did Spencer’s treating doctors and a psychiatrist who
provided a second opinion as to Spencer’s capacity to consent to Stage 2 treatment. There was an
independent children’s lawyer appointed (although the independent lawyer’s submissions as to
Spencer’s Gillick competence were not discussed in the judgment) but it does not appear that a
family report was ordered. Johns J dispensed with the requirement under rule 4.10 of the Rules that
the application and support material be served on the prescribed child welfare authority.
In her judgment, Johns J recorded that Spencer had preferred wearing male clothes, and playing
with boys, since the age of three. When in secondary school, Spencer started exhibiting suicidal
tendencies and received treatment for depression and anxiety. He had a large number of absences
from school and, according to his mother, was “completely disengaged and disinterested”. Spencer
told his psychologist in 2011 that he identified as male. In 2012, Spencer told his mother he wished
to live his life as a male. He was diagnosed with gender dysphoria in June 2012.
The expert evidence before the Court was that Spencer’s emotional stage would deteriorate severely
if Spencer did not receive Stage 2 treatment and that he would be at significant risk of self harm.
Johns J referred to the principles established by the High Court of Australia in Re: Marion. Johns J
also quoted from the Full Court’s decision in Re: Jamie, to the effect that:

a competent child can consent to Stage 2 treatment;

the Court is responsible for determining if a child is Gillick competent; and

this is so because the risk of making the wrong decision as to a child’s capacity to consent
and the consequences of a wrong decision are particularly grave.
Johns J said that the Full Court held that once the question of Gillick competence was established,
the Court would have no further role.
Johns J had before her affidavits from Spencer’s treating doctors, including two psychiatric reports,
and a report from Spencer’s treating paediatrician. All had been asked to provide an opinion about
Spencer’s capacity to consent to Stage 2 treatment. Each report addressed Spencer’s insight and
maturity, his expressed wishes about undertaking Stage 2 treatment, his understanding of the
proposed course of treatment, including its potential benefits and risks and the fact that it would
cause irreversible physical changes, his views about alternates to undertaking Stage 2 treatment, and
his likely response if Stage 2 treatment was not commenced.
Johns J found that the medical evidence “overwhelmingly supports a finding that Spencer is Gillick
competent.” Spencer’s treating paediatrician’s report stated:100
[Spencer] is Gillick competent to make the decisions regarding commencement of stage two
[testosterone] treatment. This has been demonstrated during our consultations where [Spencer] has
engaged in sophisticated discussion around the issues of his gender identification, fertility
preservation and the long term consequences of treatment both in terms of physical and
psychological health and wellbeing.
100
Re: Spencer [2014] FamCA 310 at [45].
50
On the basis of the evidence of Spencer’s treating practitioners, and the psychiatrist who provided a
second opinion, Johns J said she was satisfied that Spencer was Gillick competent. Johns J also
found that it was in Spencer’s best interests to make the declaration sought, as to do otherwise
would be to gravely compromise his health and well-being.
After finding that the power to make orders relating to the welfare of children included the power to
make the declaration sought by Spencer’s mother, Johns J proceeded to declare Spencer competent
to give informed consent for the treatment of gender dysphoria. Orders were made in those terms.
The position in North America as compared with Australia
Five jurisdictions compared: statute and common law
Five North American jurisdictions were selected for comparative purposes, to provide a sense of the
different approaches that have been taken towards young people and decision making about medical
treatment. Two are Canadian provinces (Ontario and British Columbia) and three are states of the
United States of America (New York, California and Virginia). Although it was possible to locate
decisions from those jurisdictions concerning the medical treatment of young people, and
particularly refusal of life-saving treatment, no decisions involving treatment of gender dysphoria
were able to be identified. This is in contradistinction to Australia where, as the foregoing
discussion exemplifies, there have been a number of applications for treatment for that condition.
That, in turn, has provided the impetus for the jurisprudential development of the law surrounding
consent to medical treatment for gender dysphoria in Australia.
Canada
In its report entitled Children and the Law: Medical Treatment, the Law Reform Commission of
Ireland summarised the legal position in Canada in the following terms:101
In Canada, many Provinces retain 18 as the general age of majority, but in respect of medical
treatment there has been a general move towards conferring full capacity on persons from 16 years
of age. In addition, for those under 16 years of age, a “mature minor” rule is well established.
While the “mature minor” rule has predominantly been developed at common law, a number of
recent statutory provisions have also been enacted. Provisions enacted in British Columbia and New
Brunswick in 1973 and 1975 are similar to those enacted in other countries at the time, such as
England and Australia. These provisions can be contrasted with more recent legislative
developments in Ontario and Prince Edward Island, which are based on a functional approach to
capacity and the general presumption that a person is capable of making a healthcare decision.
Ontario
In Ontario, the Health Care Consent Act 1996 addresses issues of medical consent.102 Notably, the
Act proceeds from a presumption of capacity to consent to medical treatment that is unconstrained
by any age limits.
101
Law Reform Commission of Ireland, Children and the Law: Medical Treatment, Consultation Paper, December
2009, 81.
102
See generally John Phillippe Schuman, ‘When Worlds Collide: the Legal Right of Minors in Ontario to Direct
Medical Treatment’ (1999) 5 Appeal Law Journal 38-53
http://journals.uvic.ca/index.php/appeal/article/view/5547/3469 (accessed 20 August 2014).
51
Section 4(1) provides that a person is capable with respect to treatment, admission to a care facility,
or a personal assistance service if the person is able to understand the information that is relevant to
making such a decision and able to appreciate the reasonably foreseeable consequences of a
decision or lack of decision. Section 4(2) provides that a person is presumed to be capable of
making his or her own decisions about medical treatment.
In Starson & Swayze,103 the majority of the Supreme Court of Canada said about the first ‘limb’ of
the test that:
The person must be capable of intellectually processing the information as it applies to his or her
treatment, including its potential benefits and drawbacks. Two types of information would seem to
be relevant: first, information about the proposed treatment; and second, information as to how that
treatment may affect the patient’s particular situation. Information relevant to the treatment decision
includes the person’s symptoms and how the proposed treatment may affect those symptoms. The
patient must be able to acknowledge his or her symptoms in order to be able to understand the
information relevant to a treatment decision. Agreement with a medical professional’s diagnosis per
se, or with the “label” used to characterize the set of symptoms, is not, however, required.
In respect of the second ‘limb’ the majority said:104
The second component of the test is that the person be “able to appreciate the reasonably foreseeable
consequences of a decision or lack of decision”. The appreciation test has been characterized as
more stringent than a mere understanding test, since it includes both a cognitive and an affective
component: R. Macklin, “Some Problems in Gaining Informed Consent from Psychiatric Patients”
(1982), 31 Emory L.J. 345. To be capable, a patient must be able not only to understand the relevant
information, but also to “appreciate the reasonably foreseeable consequences of a decision or lack of
decision”: s. 4(1) of the HCCA.
Under section 4(3), a person may rely on the presumption of capability unless she or he has
reasonable grounds to believe that the other person is incapable of consenting to medical treatment,
admission to a care facility or to receiving personal assistance services. The term “person” is not
defined in the Act. However, as Schuman writes “there is no reason to believe that “person” does
not include children and young people”.105 In Re: Baby R,106 the British Columbia Court of Appeal
specifically held that the definition of person includes children. In R v J(R) it was held that the
Canadian Charter of Rights and Freedoms includes children under the age of 16.107 According to
Schuman, therefore at law, children are persons and are presumed to be able to consent to their own
medical treatment.108
Section 10 states that a health practitioner who proposes a treatment for a person shall not
administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless
he or she is of the opinion that the person is capable with respect to the treatment, and the person
has given consent. The elements of consent are set out in section 11. They are:

the consent must relate to the treatment.
103
[2003] 1 SCR 722 at [16].
Ibid at [17].
105
Above n 102, 42.
106
(1988) 15 RFL (3d).
107
(1982) 1CRR 202, 204.
108
Above n 102.
104
52



the consent must be informed.
the consent must be given voluntarily.
the consent must not be obtained through misrepresentation or fraud.
The patient’s health practitioner is responsible for making a finding as to mental capacity. Section
15 states that capacity depends on treatment (a person may have capacity to consent to some
treatments but not others) and time (a person may be capable of consenting to treatment at a certain
time and incapable at another time).
In summary therefore, in Ontario a health care provider must determine, on reasonable grounds, that
a child does not fully comprehend the nature or the possible consequences of the decision. If
reasonable grounds for invalidating a child’s consent cannot be found, the child’s instructions must
be followed, even where the parents’ wishes contradict those of the child. Sub-section 29(1) gives
health care practitioners immunity from suit where they reasonably believe that valid consent has
been given by a child.
Under sections 32, 50 and 65, a person may apply to the Consent and Capacity Board for a review
of a health practitioner’s finding of incapacity.
Schuman wrote that, despite concerns during its passage about extending capacity for medical
consent to children, the 1996 Act did not change the law. In Johnston v Wellesley Hospital et al109
the High Court of Justice found that there is no specific age at which minors becomes legally
capable of making their own medical decisions. At common law, children could direct their own
treatment if they could appreciate fully the nature and consequences of the procedure in question.
According to this decision therefore, children always had the right to consent to or refuse treatment,
provided they understood its nature and consequences.
In the Ontario case of Re: LDK110 which was decided before the Health Care Consent Act came into
force, a 12 year old was diagnosed with acute myeloid leukaemia. Her chances of survival were 10
per cent without treatment and 30 per cent with treatment. She was a Jehovah’s Witness and had
refused blood transfusions as well as strongly objecting to chemotherapy. Justice Kent of the
Ontario Provincial Court found that ‘LDK’ was sufficiently mature to make her own decision to
refuse medical treatment. Treatment was not administered and LDK subsequently died from the
disease.
British Columbia
Unlike Ontario, the British Columbian statute contains an age limit of 19 years. Medical consent
provisions are contained in Part 2 of the Infants Act 1996 (BC). Part 2 of the Infants Act 1996 (BC)
states that a person under the age of 19 years old (an “infant”) can consent or agree to their own
health care, if they are capable of doing so. “Health care” is defined as anything that is done for a
therapeutic, preventive, palliative, diagnostic, cosmetic or other health related purpose, and includes
a course of health care.
Pursuant to sub-section 17(3), consent is only valid where the health care provider has:
109
110
(1971) 2 OR 103.
Re LDK; Children’s Aid Society of Metropolitan Toronto v K and K (1985) 48 RFL (2d) 164.
53
a)
explained to the infant and has been satisfied that the infant understands the nature and
consequences and the reasonably foreseeable benefits and risks of the health care; and
(b)
has made reasonable efforts to determine and has concluded that the health care is in the
infant's best interests.
There is no set age at which a child becomes capable. Doctors have to use their best judgment in
each case. Factors that are relevant to the decision about capability are how mature the child is and
how serious the medical treatment is. At common law, the test for capable decision making focuses
on a minor’s cognitive development. In Re Koch,111 Judge Quinn stated that the necessary
“capacity” is a cognitive capacity. It involves the functions of understanding and appreciation as
they relate to [the proposed medical treatment]”. At least one commentator has described the
cognitive interpretation of maturity as “highly problematic”.112
Schuman wrote that:113
[u]nder their right to security under section 7 of the Canadian Charter of Rights and Freedoms,
competent children may have a right to direct their own treatment. The majority of the Supreme
Court in R v Morgentaler (1998) held that the constitutional right to security of the person must
include some protection from state interference where a person’s life or health is in danger.
According to Schuman “[w]here a child has expressed wishes regarding a treatment that he or she
understands, ignoring that child’s priorities and aspirations and forcing them, by law, to concede to
the wishes of his or her parents is clearly an interference with that child’s body.”114
The clear point of distinction between Ontario and British Columbia is that Ontario’s statute is
founded on the principle of presumptive capacity, whereas the Infants Act contains an age limit of
19 years, below which something approximating the ‘mature minor’, or Gillick, doctrine applies.
The United States
Huft, in her analysis of barriers experienced by transgender youth in accessing medical treatment,
stated that:115
[l]egally, in the United States, a minor may begin sex reassignment with parental consent as long as
the minor’s doctor approves the procedure. However a legal barrier exists for many transgender
youth who are unable to obtain parental consent. These individuals may be able to seek permission
from the courts either by arguing that their parents neglected them by not allowing them medically
necessary treatment or by arguing under a Mature Minor doctrine.
In summarising the position in the United States concerning young people and consent to medical
treatment, Horshall said:116
111
[1997] O.J. No. 1487 (Cont. Gen. Giv.).
Lucinda Ferguson, The End of An Age: Beyond Age Restrictions for Minors’ Medical Treatment Decisions, paper
prepared for the Law Reform Commission of Canada, October 2004, 13.
113
Above n 102, 5.
114
Ibid.
115
Mary Huft, ‘Statistically Speaking: the High Rate of Suicidality Among Transgender Youth and Access Barriers to
Medical Treatment in a Society of Gender Dichotomy’, (2008) 28 Children’s Legal Rights Journal 53, 55.
116
Leora Horshall, ‘What Can We Do for You Today: Minors’ Medical Consent Legislation and Sexual Minority
Youth’ (2012) 32 Children’s Legal Rights Journal 37, 44.
112
54
[a]ll states have begun to provide for the health of minors by creating various minors’ medical
consent laws. Allowing minors to seek care for several conditions commonly relevant to the lives
of adolescents and establishing a variety of means by which they may proceed with non-parental
consent increases the likelihood that youths will get the care they need.
The following are some examples.
New York
Shield stated that the law governing access to medical treatment in New York is similar to many of
those across the United States.117 At common law, minors are considered to be legally incompetent
and incapable of consenting to their own medical treatment. Shield wrote that the United States
Supreme Court said in Carey v Population Services International118 said “the law has generally
regarded minors as having a lesser capacity for making important decisions.” In the 1976 decision
of Bellotti v Baird119 the United States Supreme Court noted that minors demonstrate
“unquestionably greater risks of inability to give an informed consent than do adults.” In the
second Belloti v Baird decision delivered in 1979,120 the United States Supreme Court justified the
minimisation of minors’ rights on the basis of their “peculiar vulnerability”.
Individuals gain the right to give informed consent to medical treatment upon attaining the age of
18. The New York Court of Appeals in Rivers v Katz stated:121
In our system of a free government, where notions of individual autonomy and liberty are cherished,
it is the individual who must have the final say in respect to decisions regarding his medical
treatment in order to insure [sic] that the greatest possible protection is accorded to his autonomy
and freedom from unwanted interference with the furtherance of his own desires.
According to Shield, children, by definition, lack capacity to take care of themselves. They are
assumed to be subject to the control of their parents and if parental control falters, the state must
play its part as parens patriae. There is a rebuttable presumption that parents are acting in their
children’s best interests.122
At the time of writing in 2008, Shield said that there was only one New York opinion to consider
the ‘mature minor’ doctrine, that being the decision In re Long Island Jewish Medical Center.123 In
that case the court was asked to decide whether a young man only months shy of his 18th birthday,
who was a Jehovah’s Witness, could refuse a life-saving blood transfusion. The New York
Supreme Court held the young man was not competent to make his own decision and relied on
certain facts in reaching that conclusion, including that he had never dated or been away from home,
he consulted his parents before making decisions, and testified that he considered himself a child.
The Court concluded that he could not demonstrate a “mature understanding of his own religious
beliefs or of the fatal consequences to himself.” Shield stated that because the young man was
found not to be a mature minor, “this case leaves unclear whether the mature minor doctrine is
Sonja Shield, ‘The Doctor Won’t See You Now: Rights of Transgender Adolescents to Sex Reassignment Treatment’
(2008) 7 Dukeminier Awards Best Sexual Orientation & Gender Law Review 99, 102.
118
(1977) 431 US 678. See discussion in ibid, 131-2.
119
(1976) 428 US 132.
120
(1979) 443 US 622.
121
(1986) 504 NYS 2d 74 at 78.
122
Above n 117, 133.
123
(1990) 557 NYS 2d 239.
117
55
precedential law in New York.” As Shield observed however, commentators have argued that the
court would not have applied a mature minor test unless it was accepted as a viable legal doctrine.124
If a parent or foster carer will not give consent for a child to access transgender related health care,
the minor may be able to seek permission from the court. One option is to ask the court to find that
the parent neglected the minor by failing to allow necessary medical treatment. Section 1012(f) of
New York’s Family Court Act permits the court to order medical treatment for a minor if the court
finds the minor to be neglected. This option is most commonly exercised in cases where the child’s
life is at risk but, as discussed below, has also been applied in situations where medical treatment
was in the best interests of the child.
There are examples of New York courts intervening in circumstances where parents have refused to
authorise routine medical care that would permit their child to lead a normal and healthy life. For
example in In Re Rotkowitz125 the Domestic Relations Court (now the Family Court) ordered
emergency surgery for a 10 year old for a foot deformity over the father’s objections. The Court
said:126
I must conclude that it was the intention of the Legislature to give power to the justices of this court
to order an operation not only in an instance where the life of the child is to be saved but also in
instances where the health, the limb, the person and the future of the child is at stake.
The case of In Re Sampson127 involved a 16 year old with Von Recklinghausen’s disease, which was
not life threatening or health threatening, but for which treatment was risky and opposed by the
young person’s parents. Treatment was ordered at first instance. On appeal, the New York Court
of Appeal found that the power of the court to order medical treatment is not limited to “drastic or
mortal circumstances”. Parental refusal of medical treatment was found to constitute neglect.
There are certain exceptions that permit minors to consent to their own care. In New York, minors
can consent to substance abuse treatment, outpatient mental health services, HIV tests and treatment
for a sexually transmitted disease. Section 2504 of New York Public Health Law provides that
people who are married or who are parents, and who are thereby considered to be ‘emancipated’,
can provide consent for medical, dental, health and hospital services. Under the same section,
where a person is under the age of 18 and “in the physician’s judgment an emergency exists and the
person is in immediate need of medical attention and an attempt to secure consent would result in
delay of treatment which would increase the risk to the person’s life or health”, the person can
consent to their own medical treatment.
Shield maintained that “with the codification of statutory exceptions to informed consent law, the
New York State Legislature has signalled its approval of the growing trend towards adolescent
decision-making under the law.”128
124
Above n 117, 156.
(1941) 25 NYS 2d 624.
126
Ibid 627.
127
(1972) 278 NED 900.
128
Above n 117, 156.
125
56
California
Generally, in California, minors cannot consent to medical diagnosis, care, or treatment. Section
6500 of California’s Family Code provides that a minor is person aged under 18 years.
Accordingly, a parent or legal guardian must give consent. However, there are certain statutory
exceptions that permit people under the age of 18 to consent to their own medical care, or consent
to particular types of treatment where they are 12 years or older.
Section 6924(3)(b) of the Code provides that:
A minor who is 12 years of age or older may consent to mental health treatment or counselling on
an outpatient basis, or to residential shelter services, if both of the following requirements are
satisfied:
(1) The minor, in the opinion of the attending professional person, is mature enough to
participate intelligently in the outpatient services or residential shelter services.
(2) The minor (A) would present a danger of serious physical or mental harm to self or to
others without the mental health treatment or counselling or residential shelter services or
(B) is the alleged victim of incest or child abuse.
Section 6926(b) states that “a minor who is 12 years of age or older may consent to medical care
and counselling relating to the diagnosis and treatment of a drug or alcohol related problem.”
Minors can ‘self consent’ when living separately and apart. According to section 6922 of the
Family Code, “separate and apart” means that a person has to be at least 15 years old and managing
their own finances. Young people do not need to have parental consent to live apart, the duration of
the separation is not considered, and a young person’s status as living “separate and apart” is not
affected by receiving financial support from his or her parents. Hoshall observed that the ‘living
separate and apart’ provisions may be useful for transgender young people who are estranged from
their parents as it would increase the likelihood that they are legally able to consent to their own
care, including medical treatment.129
New York and California are similar, insofar as their respective legislation contains age limits and
both jurisdictions recognise particular exceptions, as well as the concept of ‘emancipation’.
However, on its face at least it appears that California’s Family Code has more exceptions than
New York. New York also does not have legislation yet in place similar to California’s School
Success and Opportunity Act.
On 1 January 2014, the School Success and Opportunity Act came into effect in California. The
Act was the first of its kind in any American state. The Act recognises the right of public school
students to participate in sex-segregated programmes, activities and facilities based on their selfperception rather than birth gender. These include physical education classes, sports teams, toilets,
changing rooms and any other school event, activity or program that separates or makes genderbased distinctions among students.
129
Above n 116, 38.
57
Virginia
In Virginia, persons aged 18 and over are able to make decisions about their own medical treatment.
However, Virginia has enacted what Hoshall described as a “lengthy but functional statute that
satisfactorily addresses…concerns for persons wishing to provide health care to LGBTQ [lesbian,
gay, bisexual, transgender, queer or questioning] youth”.130 Hoshall observed that although the
statute contains eleven primary points and numerous sub-points, and thus is longer than that created
in most other states, it is “supremely useful because it provides the answer to nearly every relevant
question.” The pertinent provisions follow:
Section 54.1-2969A concerns authority to consent to surgical and medical treatment of certain
minors. It states:
Whenever any minor who has been separated from the custody of his parent or guardian is in need of
surgical or medical treatment, authority commensurate with that of a parent in like cases is conferred, for
the purpose of giving consent to such surgical or medical treatment:






Upon judges with respect to minors whose custody is within the control of their respective
courts.
Upon local directors of social services or their designees.
Upon the Director of the Department of Corrections or the Director of the Department of
Juvenile Justice or his designees with respect to any minor who is sentenced or committed to his
custody.
Upon the principal executive officers of state institutions with respect to the wards of such
institutions.
Upon the principal executive officer of any other institution or agency legally qualified to
receive minors for care and maintenance separated from their parents or guardians, with respect
to any minor whose custody is within the control of such institution or agency.
Upon any person standing in loco parentis, or upon a conservator or custodian for his ward or
other charge under disability.
Where the consent of a parent or guardian of a minor in need of surgical or medical treatment is
unobtainable, authority commensurate with that of a parent is placed in judges of juvenile and
domestic relations district courts.
Section 54.1-2969E details specific types of treatment for which any minor may self-consent. They
are:
1.
2.
3.
4.
Medical or health services needed to determine the presence of or to treat venereal disease or
any infectious or contagious disease that the State Board of Health requires to be reported;
Medical or health services required in case of birth control, pregnancy or family planning
except for the purposes of sexual sterilization;
Medical or health services needed in the case of outpatient care, treatment or rehabilitation
for substance abuse as defined in § 37.2-100; or
Medical or health services needed in the case of outpatient care, treatment or rehabilitation
for mental illness or emotional disturbance.
A minor is deemed to be an adult for the purpose of consenting to medical or health services in the
above four sub-categories. There is no minimum age of consent. According to Horshall, arguably
130
Ibid 42.
58
“family planning” includes counselling young LGBTQ young people about sexual orientation and
gender identity, because intimate relationships are often integral to the building of families.131
Similar to New York’s emancipation doctrine, a minor who has been married is deemed to be an
adult for the purpose of giving consent to surgical and medical treatment, save for a sterilisation
procedure, and pregnant minors are deemed to be adults for the sole purpose of giving consent for
surgical and medical treatment relating to the delivery of the child. The statute also provides that
any minor 16 years of age or older may, with the consent of a parent or legal guardian, consent to
donate blood.
The statute also contains an immunity from suit for medical service personnel in circumstances
where a delay in providing medical or surgical treatment to a minor may adversely affect a minor’s
recovery and no person authorised to consent to treatment for such minor is available within a
reasonable time under the circumstances. However, in the case of a minor 14 years of age or older
who is physically capable of giving consent, such consent is required to be obtained first.
Similarities and differences between North America and Australia
Although it is difficult to generalise, in light of the foregoing analysis, some similarities and
differences between Canada, the United States and Australia, can be observed in respect of medical
treatment for young people generally (including refusal of medical treatment). The differences tend
to outweigh the similarities. Given the lack of available relevant North American case law, it is not
possible to compare Australia’s approach to the treatment of gender dysphoria in children and
adolescents with that of Canada and the United States.
Similarities between North America and Australia
The ‘mature minor’ doctrine and Gillick competence
The first area of commonality between North America and Australia is the use of the ‘mature
minor’, or Gillick, test in assessing capacity to consent to medical treatment. The ‘mature minor’
test that operates in North America usually arises in the context of statutory provisions concerning
young people and consent to medical treatment. The test of Gillick competence however is one that
was developed at common law in the United Kingdom and applied in that context by the Family
Court of Australia. Nevertheless, at both statute (North America) and common law (Australia), the
tests have similar features. These are, in effect, that the child or young person must fully
understand the nature of the treatment proposed and fully understand the consequences of the
procedure being performed; both potentially positive and negative.
Consent to treatment versus refusal of treatment
The second area of commonality is the distinction drawn in both North America and Australia
between consent to medical treatment and refusal of medical treatment, particularly where that
treatment is potentially life-saving. It is apparent from decisions such as Re Long Island Jewish
Medical Centre in New York, and the New South Wales Court of Appeal in Re: X v The Sydney
Children's Hospitals Network,132 which both involved 17 year olds who were members of the
Jehovah’s Witness faith and who wished to refuse life-saving blood transfusions, that courts
131
132
Ibid.
[2013] NSWCA 320.
59
proceed very cautiously in assessing competency where the consequence may be the death of a
child. The decision of Re Long Island Jewish Medical Centre was discussed earlier in the paper. In
Re: X v The Sydney Children's Hospitals Network, although the trial judge was satisfied in a general
sense that the young person was capable of understanding and consenting to or withholding consent
for a particular form of treatment, he nevertheless made orders sought by the treatment hospital that
blood products be administered. Those orders were upheld on appeal as being within power,
despite the trial judge’s findings as to the young person’s capacity. The Ontario decision of Re:
LDK is one of the few that can be located where a young person’s right to refuse consent to
potentially life-saving medical treatment was upheld,133 and even this decision is thought by some to
have been influenced by the fact that the young person’s chances of survival were only 30 per cent
even if treatment were administered, and the side effects were severe.134
Differences between North America and Australia
Statute versus common law
Consent to medical treatment statutes appear to be commonplace in Canada and the United States,
and represent the standard legal response to resolving issues associated with young people and
consent to medical treatment. In Australia however, only two states have codified their law with
respect to consent to medical treatment by young people and, self-evidently, there is no national
consent to medical treatment statute in Australia. In Australia therefore, issues regarding young
people’s access to or refusal of medical treatment have, and continue to be, largely determined by
reference to common law principles, rather than by statute. It is however recognised that North
American courts have recourse to the common law ‘mature minor’ doctrine when resolving disputes
about medical treatment which involves young people.
Decision making responsibility – medical versus legal
Allied to the above, a significant area of difference between North America and Australia lies in
who has responsibility for undertaking competency assessments: is it a medical process, or a legal
process? In those North American jurisdictions surveyed, the decision is principally a medical one,
in the sense that a young person’s physician decides whether or not a young person has the capacity
to choose or refuse medical treatment. In North America, courts and quasi-judicial bodies have
residual jurisdiction in the event that there is a dispute about medical treatment or a challenge to a
finding of capacity or incapacity,135 and can also provide consent to medical treatment where a
parent is unavailable to do so.136 However, it is doctors, and not courts, who are vested with the
primary decision making responsibility as to whether a young person is competent to consent to, or
refuse, medical treatment. In Australia, at a Commonwealth level at least, Re: Jamie is authority
for the proposition that competency assessments are to be undertaken by the Family Court and the
decision therefore is a legal rather than a medical one. This is a likely explanation for why there is
a comparative abundance of Australian decisions involving medical treatment for young people
with gender dysphoria as compared with North America.
133
See also the decision of the Newfoundland Family Court in Re Y. (A.) (1993) 111 Nfld. & PEIR 91, where a similar
decision was reached. See generally Susan Woolley, ‘Children of Jehovah’s Witnesses and adolescent Jehovah’s
Witnesses: what are their rights?’ (2005) 90 Archives of Disease in Childhood 715 <
http://adc.bmj.com/content/90/7/715.full> (accessed 21 August 2014).
134
Above n 101, 146.
135
For example, Ontario’s Consent and Capacity Board.
136
For example, section 54.1-2969 of the Code of Virginia.
60
Age of consent
In Canada and the United States, in those provinces and states that have enacted consent to medical
treatment statutes that set an age of consent, it is usually no older than 16 years and sometimes
younger – 12 and 14 years in some circumstances, depending upon what is being consented to. In
Australia however, the Family Court’s ‘welfare’ jurisdiction can be attracted in respect of people
until they turn the age of 18 years.137 Many of the decisions of the Family Court, and particularly
the more recent decisions, involved applications to Court in respect of adolescents aged 16 and 17
years.138 In Australia therefore, the Commonwealth retains a major role in making treatment
decisions for adolescents aged 16 years and older, where the treatment sought falls outside the types
of procedures that parents can consent to, or where there is a dispute around medical treatment.
Generally speaking, in Canada and the United States, adolescents aged 16 years and over are adults
for the purpose of making decisions about medical treatment.
Types of medical procedures and presumptive capacity
In Canada and the United States, consent to medical treatment statutes tend to delineate the types of
treatments young people can consent to themselves; usually in the areas of sexual and reproductive
health, mental health, counselling and support, and drug and alcohol related issues. In certain
jurisdictions, such as New York, a child must have reached a particular age before legally being
able to self consent to defined types of treatment. However, Australia has tended not to
particularise treatments that young people have the capacity to consent to, either by way of statute
or at common law. As far as the Court’s jurisdiction under section 67ZC is concerned, there is no
fixed category or type of treatment that requires court permission, although it is now clear that
Stage 1 treatment for gender dysphoria is not a procedure requiring court authorisation. The two
Australian states that have legislatively intervened in the medical consent arena have tended to
legislate quite broadly, permitting young people over the age of 16 to make decisions about
“medical treatment” or similar. The concept of presumptive capacity to consent, which applies in
Ontario, is not one known to Australian law. Under the Family Law Act, the best interests of the
child is the paramount consideration, recognising of course that the views of the child are given
greater weight where a child is older and more mature.
In loco parentis, emancipation and neglect
Australian law makes limited provision for substituted decision making about medical treatment for
young people, when a person other than a parent is seeking orders with respect to a child. As far as
the Family Court is concerned, any person concerned with the care, welfare and development of a
child can apply for a parenting order. In the ordinary course of events, that is not a difficult hurdle
to navigate. However, where applications are brought under section 67ZC there are certain
Constitutional requirements that must be met139 that arguably make it more difficult for non-parents
to apply for orders, even where the applicant is a government department and the child the subject
of a guardianship order. These complexities are discussed in the decisions of Carter J in Re: Brodie
(Jurisdiction) and Murphy J in Re: Lucy. In the overwhelming majority of cases decided under
section 67ZC, the applicant was the parent. It is understood that there have only been two cases
137
Re: Bernadette (2011) FLC 93-463.
Re: O (aged 16 at date of application); Re: Rosie (aged almost 17 at date of application); Re: Alex (aged over 17 at
date of application for a double mastectomy); Re: Sam & Terry (aged 16 at date of application); Re: Shane (aged 16 at
date of application); Re: Spencer (aged 16 at date of application).
139
Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (2004) 219 CLR 365.
138
61
(Re: Alex and Re: Lucy) where the applicant was the relevant government department. Unlike the
Code of Virginia, for example, the New South Wales and South Australian medical consent statutes
do not make provision for categories of non parent persons who can consent on a child’s behalf
(including courts) or for people who can provide consent for treatment when a parent is unable to
do so. Equally, the concepts of ‘emancipation’ and ‘neglect’, which exist in New York and
California as vehicles to vest young people with decision-making autonomy, are not recognised in
Australia.
Human rights instruments
The Canadian Charter of Rights and Freedoms and the United States Constitution140 have assumed
significance in litigation surrounding young people’s decision-making autonomy. Australia has no
such charter or bill of rights, with the result that the invocation of human rights norms in Australian
decisions involving consent to medical treatment has been comparatively limited. It is possible to
discern from the 2009 decision in Re: Alex and Bryant CJ’s judgment in Re: Jamie that
international human rights are assuming a greater role in decision making around medical treatment
for young people. The AHRC, in its role as intervener in applications for authorisation to consent
to medical treatment, has made an important contribution in this regard.
Would having a human rights instrument have made a difference to
the outcome in Re: Jamie?
Based on some of the Canadian and American decisions, and having regard to litigation around
Gillick competence in the United Kingdom, which also has a Human Rights Act, it is at least
arguable that the Full Court in Re: Jamie could have found that Stage 2 treatment for gender
dysphoria was not a procedure requiring Court authorisation if Australia had a human rights
instrument. This would be particularly so if such an instrument contained articles directed towards
concepts such as the right to liberty and security of the person, the right of identity, the right to
autonomy and personal legal rights, and the right to equal protection and equal benefit of the law.
That is not necessarily because these rights have been given precedence in litigation around young
people and medical treatment in those jurisdictions that have a bill or charter or rights, but more
because of the significance rights-based arguments assume in proceedings involving medical
treatment for young people. The fact that treatment for gender dysphoria involves positive consent
to medical treatment, rather than refusal of potentially life-saving medical treatment, which seems
to be a significant point of departure as far as findings about decision-making capacity are
concerned, is also a salient factor. Some of the more significant decisions from Canada, the United
States and the United Kingdom, decided by reference to human rights instruments, are discussed
below.
See for example the United States Supreme Court’s decision in Roper v Simmons (2005) 543 US 551. One academic
commentator argues that “[a] careful, context-specific analysis of the adolescent characteristics identified by the Roper
Court shows that, rather than positing a conceptual barrier, the decision supports a presumption in favor of allowing
transgender youth to obtain hormones without parental consent.” See Maureen Carroll, ‘Transgender Youth,
Adolescent Decision Making, and Roper v Simmons’ (2009) 56 University of California, Los Angeles Law Review 725.
140
62
Relevant decisions from Canada
In B. (R.) v. Children’s Aid Society of Metropolitan Toronto,141 the Supreme Court of Canada heard
an appeal from a decision of the Ontario Court of Appeal. The subject matter of the appeal
involved a wardship order that had been made in respect of a young child who had exhibited many
physical ailments and received a number of medical treatments. Prior to the wardship order being
made, the child’s treating physicians had avoided the use of a blood transfusion because the child’s
parents were Jehovah’s Witnesses. Upon the wardship order being made under the Ontario Child
Welfare Act, the child received a blood transfusion. The appellants, the child’s parents, asserted
that the Child Welfare Act infringed article 7 of the Canadian Charter of Human Rights and
Freedoms because it, inter alia, denied them the right to choose medical treatment for their child.
The Supreme Court of Canada dismissed the appeal.
La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ found that the liberty protected by s 7 of
the Charter did not mean unconstrained freedom. Their Honours said that the state undoubtedly had
the right to impose many types of restraints on individual behaviour, and not all limitations would
attract Charter rights.
Significantly however, their Honours went on to say (emphasis added):142
On the other hand, liberty does not mean mere freedom from physical restraint. In a free and
democratic society, the individual must be left room for personal autonomy to live his or her
own life and to make decisions that are of fundamental personal importance.
The right to nurture a child, to care for its development, and to make decisions for it in fundamental
matters such as medical care, are part of the liberty interest of a parent. The common law has long
recognized that parents are in the best position to take care of their children and make all the
decisions necessary to ensure their well-being. This recognition was based on the presumption that
parents act in the best interest of their child. Although the philosophy underlying state intervention
has changed over time, most contemporary statutes dealing with child protection matters, and in
particular the Ontario Act, while focusing on the best interest of the child, favour minimal
intervention. In recent years, courts have expressed some reluctance to interfere with parental rights,
and state intervention has been tolerated only when necessity was demonstrated, thereby
confirming that the parental interest in bringing up, nurturing and caring for a child,
including medical care and moral upbringing, is an individual interest of fundamental
importance to our society.
The decision of the Supreme Court of Canada in AC v Manitoba (Director of Child and Family
Services)143 is also of considerable significance. It was referred to by the New South Wales Court of
Appeal in X v Sydney Children’s Hospital Networks, referred to earlier. The following discussion is
taken from that judgment:144
42
Finally, it is helpful to refer to the judgment of the Supreme Court of Canada in AC v
Manitoba (Director of Child and Family Services) 2000 SCC 30; [2009] 2 SCR 181. The principal
judgment was delivered by Abella J (for Le Bel, Deschamps, Charron JJ and herself). The applicant,
141
[1995] 1 SCR 315.
Ibid 317-318.
143
[2009] 2 SCR 181.
144
[2013] NSWCA 320 [42]-[46].
142
63
AC, was 14 years and 10 months when she was admitted to hospital suffering lower gastro-intestinal
bleeding as a result of Crohn’s disease. As a Jehovah’s Witness, she refused blood transfusions
under any circumstances. A court order was requested under the Manitoba Child and Family
Services Act…
…
43
A transfusion was ordered and AC recovered: [13]. However, AC and her parents
complained that the order should not have been made because s 25(8) only applied to minors under
16 without capacity and, alternatively, that those provisions were unconstitutional as unjustifiably
infringing AC’s rights under the Charter of Rights and Freedoms.
44
The applicant was unsuccessful on both issues, but for reasons which are not presently
significant. However, in construing the legislation and considering the justification for such
provisions under the Charter, Abella J discussed a number of matters concerning common law
principles.
45
After referring to Gillick and Re W, Abella J noted that the English Court of Appeal had
"definitively established that even ‘mature minors’ were subject to the court's inherent parens
patriae jurisdiction": at [54]. She also stated, in a passage not challenged in this Court, that “[t]o
date, no court in the United Kingdom has allowed a child under 16 to refuse medical treatment
that was likely to preserve the child's prospects of a normal and healthy future, either on the
ground that the competence threshold had not been met ... or because the court concluded that it had
the power to override the wishes of even a 'Gillick-competent' child”: at [57]. Further, the reasons, at
[58], adopted a passage from the judgment of Kerans JA in JSC v Wren (1986) 76 AR 115 (CA) in
respect of a 16 year old girl who had received medical approval for a therapeutic abortion, but whose
parents sought to assert their rights of veto until she reached majority at the age of 18:
“Parental rights (and obligations) clearly do exist and they do not wholly disappear until the
age of majority. The modern law, however, is that the courts will exercise increasing
restraint in that regard as a child grows to and through adolescence.”
46
After reviewing the law in other jurisdictions (including reference to Marion’s case) Abella
J concluded:
“[66] Individual states have approached the issue of adolescent decision-making in various
ways, some enacting statutory exceptions to the default presumption of incapacity, and some
embracing the common law ‘mature minor’ doctrine to varying degrees. As in the UK and
Canada, no state court has gone so far as to suggest that the ‘mature minor’ doctrine
effectively 'reclassifies' mature adolescents as adults for medical treatment purposes. ...
[69] What is clear from the above survey of Canadian and international jurisprudence is that
while courts have readily embraced the concept of granting adolescents a degree of
autonomy that is reflective of their evolving maturity, they have generally not seen the
‘mature minor’ doctrine as dictating guaranteed outcomes, particularly where the
consequences for the young person are catastrophic.”
64
Binnie J was in dissent and found the provincial Act to be unconstitutional. Binnie J said, in
summary (emphasis added):145
In my opinion the deprivation of liberty or security of the person does not accord with the
principles of fundamental justice where the only justification advanced for the deprivation,
namely the incapacity of the young person, has been accepted by the applications judge not to
exist.
…
[S]trong as is society’s belief in the sanctity of life, it is equally fundamental that every
competent individual is entitled to autonomy to choose or not to choose medical treatment
except as that autonomy may be limited or prescribed within the framework of the
Constitution. The rights under s. 2 (a) of the Charter (religious freedom) and s. 7 (liberty and
security of the person) are given to everyone, including individuals under 16 years old.
The New South Wales Court of Appeal in X & Sydney Hospital Networks146 said that the Charter
cases in Canada, as well as the constitutional cases in the United States of America and other
countries with constitutional provisions similar to the United States’ Bill of Rights, are “instructive”
on the issue of balancing fundamental human rights principles. The New South Wales Court of
Appeal quoted from the Ontario Court of Appeal decision in Malette v Shulman,147 which involved
an adult Jehovah’s Witness who arrived at hospital unconscious but with a signed medical alert card
stating that no blood should be administered under any circumstances. The emergency doctor gave
blood, and was sued for battery. In addressing the conflicting values, the Court stated:148
The state’s interest in preserving the life or health of a competent patient must generally give way to
the patient's stronger interest in directing the course of her own life .... Recognition of the right to
reject medical treatment cannot … be said to depreciate the interest of the state in life or in the
sanctity of life. Individual free choice and self-determination are themselves fundamental
constituents of life. To deny individuals’ freedom of choice with respect to their health care can
only lessen, and not enhance, the value of life.
Having regard to certain of the comments made by the majority in B. (R.) v. Children’s Aid Society
of Metropolitan Toronto about the importance under the Canadian charter of “personal autonomy”
and the ability to make decisions “of fundamental personal importance”, those of Abella J in AC v
Manitoba (Director of Child and Family Services) about the diminishing role of courts in making
decisions about medical treatment for adolescents, and the Ontario Court of Appeal’s comments
about free choice as a “fundamental constituent of life”, it is conceivable that the outcome in Re:
Jamie may well have been different if Australia had a human rights charter. For example, the Full
Court could have found that, as the consequences of Jamie receiving Stage 2 treatment were not
“catastrophic”, court authorisation was not required. Indubitably, if Australia had a human rights
charter and an interpretation similar to that of Binnie J’s was placed on the charter, not only would
the Full Court would in all likelihood have found that court authorisation for Stage 2 treatment was
145
[2009] 2 SCR 181 at [175], [192].
[2013] NSWCA 320 at [58].
147
(1990) 72 OR (2d) 417.
148
Ibid at [429f].
146
65
not required, but also that the Court had no residual jurisdiction following a finding of Gillick
competency.
Relevant decisions from the United States
Writing in 2005, Beh and Diamond stated that “[A]lthough no published cases have considered the
appropriateness of hormonal injections, there have been surprising glimmers of such understanding
in judicial decisions in the United States considering “real life” treatment of adolescent GID
[gender identity disorder]”.149 The cases referred to by Beh and Diamond are centred around ‘due
process’ violations and constitutional breaches on the grounds of discrimination.
The first case was Doe & Yuntis.150 A school district code prevented Pat Doe, a biological male,
from wearing female clothing or accessories to school. Doe challenged the dress code, claiming it
constituted discrimination on the basis of disability under the Massachusetts Constitution. The
court concluded that gender identity disorder constituted a handicap. The court refused to dismiss
Doe’s claim, as sought by the school, and in so doing noted that expert testimony supported Doe’s
allegation that requiring him to wear boy’s clothing would be “injurious to her psychiatric health”.
The second case was Doe & Bell.151 Doe was a 17 year old diagnosed with gender identity disorder
who resided in foster care in New York State. Doe’s treatment plan involved her wearing girl’s
clothing, accessories and makeup, and other items to make her look more feminine. Ostensibly for
behavioural reasons, Doe was placed in an all-male facility, where she was not permitted to wear
female attire. At issue was whether the administration had discriminated against Doe, in breach of
New York State Human Rights Law. The court found that Doe suffered a disability, defined under
statute as including any “medically diagnosable impairment”. The court rejected the
administration’s argument that permitting Doe to wear feminine clothing would “jeopardise the
safety of the residents and staff” and “threaten the safety and security of the institution”. The court
found that the authority had an obligation to comply with the Human Rights Law mandate to
provide reasonable accommodation to people with disabilities.
Beh and Diamond concluded that although “[n]either of these cases involved a discussion of
medical interventions, in each case the court supported and protected an adolescent implementing a
psychiatrically approved real life plan.”
It is difficult to draw conclusions from the United States decisions involving young people with
gender identity dysphoria. Although adolescents’ rights to live in their affirmed gender have been
upheld, this has largely been secured by reference to disability discrimination laws. As discussed
below, Australia is a signatory to the CRPD and has anti-discrimination statutes in place on a
national level that includes discrimination on the basis of sex, gender and gender identity, and
similarly in some states. Therefore, having regard to Australian anti-discrimination law, it is likely
that there would be a similar outcome. The United States’ and Australia’s treatment of gender
dysphoria as a medical condition is also an approach that both jurisdiction share.
Although it is not a decision involving transgender young people, academic commentator Carroll
argued that the United States Supreme Court’s decision in Roper & Simmons, which invalidated the
149
Above n 40, 272.
15 Mass L Rep 278.
151
754 NYS 2d 846.
150
66
juvenile death penalty, supported a presumption in favour of allowing transgender youth to obtain
hormones without parental consent.152 Carroll’s argument proceeded on the basis that the Roper
Court identified three general characteristics associated with adolescent decision making:
impulsivity, susceptibility and incomplete character formulation. Applying these characteristics as
they pertain to the legal capacity of transgender youth to consent to hormone treatment, Carroll
postulated that:



The Roper Court noted that adolescents more often exhibit “a lack of maturity and an
underdeveloped sense of responsibility”, which results in “impetuous and ill-considered
actions and decisions”. In the case of transgender youth, because hormones can only be
legally obtained through consultation with a medical professional in a more organised,
formal and monitored environment, and because informed consent is a pre-condition, the
medical decision-making environment guards against impulsive decision making. Carroll
asserted that the delay between the decision to seek hormones and their eventual attainment
was a further relevant consideration.
Transgender youth face sustained and extraordinary pressure (from peers, adults and
institutions) to conform to the gender traditionally associated with their birth-assigned sex.
By presenting a nonconforming gender in the face of massive pressure not to do so,
transgender youth exhibit the ability to make decisions that do not depend on peer approval.
The Roper Court said that, in a juvenile justice context, adolescents’ incomplete character
formation suggests they would be more responsive to rehabilitation later in life. In the
context of transgender youth’s access to hormones, the question arises as to the risk of
reverting to their birth-assigned sex later in life. Carroll maintained that research suggests
that very few transgender youth identify with their birth-sex later in life and thus impeding
access to hormones out of concern about incomplete character formation would do more
harm than good. Carroll also argued that denying access to hormones would restrict
adolescents’ ability to express their identity, which impedes character development, whereas
granting access would facilitate that development.
Relevant decisions from the United Kingdom
The United Kingdom too has enacted a human rights statute, the Human Rights Act 1998 (UK), and
there have been decisions concerning young people’s consent to medical treatment as viewed
through the prism of both Gillick competence and the rights enshrined under the United Kingdom
Act. Bryant CJ discussed these in her paper ‘It’s My Body, Isn’t It: Children, Medical Treatment
and Human Rights’.153 The following is extracted from that paper.
It is instructive to compare the way the Family Court of Australia treats the issue of a child’s Gillick
competence with that of family courts in Britain, where a Human Rights Act is in force. My interest
lies in determining whether and to what extent the Human Rights Act has been relied upon to imbue
Gillick with new meaning.
The Human Rights Act 1998 (UK) was enacted “to give further effect to rights and freedoms
guaranteed under the European Convention on Human Rights”. The articles of the European
Convention on Human Rights and Fundamental Freedoms form a schedule to the Human Rights Act
152
Carroll, above n 140.
Diana Bryant, ‘It’s My Body, Isn’t It: Children, Medical Treatment and Human Rights’ (2009) 35 Monash
University Law Review 193, 202-206.
153
67
and are protected rights under the Human Rights Act. Rights are enforceable against public
authorities and all public authorities must act in a way that is compatible with those rights unless
required to do so by other legislation. The Human Rights Act also provides, in section 3, that where
possible, all legislation is to be interpreted in accord with Convention rights. As far as children and
medical treatment is concerned, the preponderance of the litigation has involved Article 8. Article 8
states:
1
Everyone has the right to respect for his private and family life, his home and his
correspondence.
2
There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.
The post-Gillick but pre-Human Rights Act jurisprudence on children and medical treatment has
been controversial. Two decisions of the United Kingdom’s Court of Appeal in particular were
criticised as a ‘retreat’ from Gillick. Interestingly, both cases, Re: R and Re: W, were heard and
determined without any reference to European Convention rights, Strasbourg jurisprudence or
UNCROC.
Re: R (a Minor (Wardship: Medical Treatment)) concerned a 15 year old girl who had been placed
in a psychiatric unit and where it had been decided she ought to be treated with anti-psychotic drugs.
R refused this course of treatment and the local authority instituted wardship proceedings. The
Court of Appeal held that R was not Gillick competent because she did not have a full understanding
of the nature of the proposed treatment, nor a full understanding of the consequences of the
treatment or of failing to administer treatment.
…
Re: W involved a 16 year old girl (who was thus competent to consent to medical treatment by virtue
of section 8 of the Family Law Reform Act 1969) who suffered from anorexia nervosa. Her parents
were deceased and she was in the care of the local authority. When her condition deteriorated, the
local authority sought to transfer her to a facility specialising in eating disorders, where treatment
would be administered against her wishes, including artificial feeding. W resisted the application on
the basis that section 8 of the Family Law Reform Act conferred on her the same rights as an adult to
refuse medical treatment. The Court of Appeal disagreed. Lord Justice Balcolme found that the
Court should not “lightly” override the decision of a minor of sufficient age and understanding to
make an informed decision. Nevertheless, where in the court’s view the child’s wishes are in
conflict with his or her best interests, the child’s wishes may be overridden.
…
This line of reasoning continued in subsequent cases, whereby a 15 year old Jehovah’s Witnesses
was compelled to undergo blood transfusions she described as being “like rape”, a heart transplant
was ordered to be performed against her wishes on a 15 year old girl who was found to be clearly
Gillick competent, and where a hospital was granted leave to administer blood products to an almost
17 year old male who was a committed Jehovah’s Witness. There was no reference to the European
Convention on Human Rights and Freedoms or UNCROC in these decisions.
Academic Michael Freeman concluded his analysis of these cases with the following statement:
68
The law clearly now discriminates and does so on the grounds of age when the clear
intention of the highest court in Gillick was to adopt a functional, rather than a status based
approach. An elderly schizophrenic in Broadmoor can refuse treatment: an intelligent 15
year old girl cannot.
Post Human Rights Act litigation – Axon and the reinvigoration of Gillick
…
As noted rights theorist Jane Fortin has observed, many of the human rights embodied in the
European Convention on Human Rights, and therefore in the Human Rights Act 1998 (UK), reflect a
belief in liberty and autonomy. On this basis, a reappraisal of the protective approach adopted by the
Court of Appeal in Re: R and Re: W may be warranted.
That ‘reappraisal’ has emerged in the shape of the decision in Re: Axon, the first post Human Rights
Act reassessment of Gillick.
The facts of Axon are strikingly similar to those in Gillick. Mrs Axon sought to attack, by judicial
review, some best practice guidelines developed for use by doctors in providing advice and
treatment for young people on contraception, sexual and reproductive health. Mrs Axon contended
that the guidelines were unlawful in excluding parents from decision making about their children’s
lives and, significantly, the guidelines breached parents’ Article 8 Convention rights to privacy of
family life. The tension between a child’s Article 8 right to autonomy and privacy and a parent’s
Article 8 right to family life, including the obligation to make decisions in the best interests of their
children, was at the crux of the dispute. Ms Axon argued in effect that the duty of confidentiality
owed by doctors to their patients, including minors, was limited: parents can only discharge their
obligations as parents if they have information available to them to do it.
…
Mrs Axon asserted that the best practice guidelines were a “plain interference” with parents’ right to
respect for family life and parental rights under Article 8 of the European Conventi on. Silber J
rejected this argument. He distinguished Neilson (which Mrs Axon cited in support of her
application) on the basis that it was concerned with Article 5 rights and not with any alleged parental
right to be informed of medical advice or treatment sought by a child. Silber J’s conclusions on the
asserted Article 8 right to exercise parental rights were fortified by reference to the Gillick principle.
He concluded:
[A]ny right to family life on the part of a parent dwindles as their child gets older and is able
to understand the consequence of different choices and then to make decisions relating to
them. … As a matter of principle, it is difficult to see why a parent should still retain an
article 8 right to parental authority relating to a medical decision where the young person
concerned understands the advice provided by the medical professional and its implications.
Silber J again referred to Gillick in his consideration of the Strasbourg jurisprudence, which he found
did not confer any right of parental power or control through Article 8 that was broader than that
conferred by domestic law. He quoted the words of Lord Scarman as describing the parameters of
parental rights as existing “primarily to enable the parent to discharge his duty of maintenance,
protection and education until he reaches such an age as to be able to look after himself and make his
own decisions.”
…
69
Silber J quoted with approval from Lord Justice Thorpe’s decision in Mabon, which concerned the
right of children to instruct their own counsel in private family law proceedings, where his Honour
said: “Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard
Article 12 rights, we must, in the case of articulate teenagers, accept that the right to freedom of
expression and participation outweighs the paternalistic judgment of welfare.”
Silber J concluded “the right of young people to make decisions about their own lives by themselves
at the expense of the views of their parents has now become an increasingly important and accepted
feature of family life.”
Axon is authority for the proposition that if a human rights act were in existence in Australia, which
contained rights similar to those in Article 8 of the European Convention (which in turn is a
Schedule to the United Kingdom’s Human Rights Act), and if the Full Court interpreted those rights
in the same way as Silber J, in all likelihood it would have arrived at the conclusion that court
authorisation for Stage 2 treatment for gender identity dysphoria was not required. However, Silber
J did not go as far as Binnie J in AC & Manitoba, and so in reliance on Axon the Full Court could
have found that the Family Court retained its jurisdiction with respect to decision-making around
medical treatment for Gillick-competent young people in certain circumstances; particularly in
cases involving refusal of life-saving medical treatment.
Current human rights protections for transgender young people in Australia
It should however be remembered that although the Australian Constitution contains few explicit
rights protections and that Australia does not have a bill of rights, human rights charter or
equivalent, that does not mean that there is no human rights protection for transgender people,
including young people.
High Court of Australia authority provides that statutes should be interpreted in a manner consistent
with international conventions to which Australia is a signatory, which includes UNCROC and the
CRPD.154 The Family Law Act was amended in 2011, effective as of 7 June 2012, to provide that
an additional object of Part VII of the Act, which concerns children, is to “give effect to the
Convention on the Rights of the Child.”.155 As stated by Bryant CJ in her judgment in Re: Jamie,
Articles 5 and 12 of UNCROC are apposite to the question of Gillick competence.
The Australian Government is required to provide statements of compatibility with human rights for
all new bills and disallowable legislative instruments.156 This scrutiny process is designed to
encourage early and ongoing consideration of human rights issues in policy and legislative
development. It also aims to improve parliamentary scrutiny of new laws for consistency with
rights and freedoms in the seven core human rights treaties to which Australia is a party. 157
154
Minister for Ethnic Affairs v Teoh (1995) 183 CLR 273.
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), s 13.
156
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
157
They are:
International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Convention on the Rights of the Child (CRC)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
Convention on the Rights of Persons with Disabilities (CRPD)
Conventison on the Elimination of All Forms of Racial Discrimination (CERD)
Convention against Torture (CAT)
155
70
One Australian state, Victoria,158 and one territory, the Australian Capital Territory,159 have human
rights charters. In Victoria, the overriding purpose of the Charter is to require the Victorian
Government, public servants, local councils, Victoria Police and other public authorities to act
compatibly with human rights, and to consider human rights when developing policies, making
laws, delivering services and making decisions. However, unlike human rights acts and charters in
jurisdictions such as Canada and the United Kingdom, rights are not actionable as such. The role of
the Supreme Court of Victoria is limited to issuing a declaration of inconsistent interpretation.
The AHRC was established in 1986. The functions of the AHRC are to:160






resolve complaints of discrimination or breaches of human rights under federal laws
hold public inquiries into human rights issues of national importance
develop human rights education programs and resources for schools, workplaces and the
community
provide independent legal advice to assist courts in cases that involve human rights principles
provide advice and submissions to parliaments and governments to develop laws, policies and
programs
undertake and coordinate research into human rights and discrimination issues.
The AHRC administers federal anti-discrimination legislation including the Sex Discrimination Act
1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004
(Cth). Both UNCROC and the CRPD are ‘declared instruments’ under the Australian Human
Rights Commission Act 1986 (Cth). This means that the AHRC is able to conciliate complaints
about acts or practices of the federal government which breach the rights in both treaties. The
office of the National Children’s Commissioner was established as part of the AHRC in 2013.
In 2008-9, the AHRC undertook a sex and gender diversity project. This culminated in the report
Sex Files: the Legal Recognition of Sex in Documents and Government Records. In 2010 the
AHRC conducted a consultation to canvas the experiences and views of people who may have been
discriminated against on the basis of their sexual orientation and sex and/or gender identity. A
report, entitled Addressing Sexual Orientation and Sex and/or Gender Identity Discrimination, was
released following the consultation process.161 These projects, and the recommendations contained
in the reports produced as a result, led to two important developments. First, as referred to in
Bryant CJ’s judgment in Re: Jamie, the Sex Discrimination Act 2004 (Cth) was amended by the Sex
Discrimination (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) to make it
unlawful to discriminate on the basis of sexual orientation, gender identity and intersex status under
federal law.162 Secondly, in July 2013 the Australian government released guidelines on the
recognition of sex and gender. The introduction to those guidelines states:163
158
Charter of Human Rights and Responsibilities Act 2006 (Vic).
Human Rights Act 2004 (ACT).
160
Australian Human Rights Commission Act 1986 (Cth), s 11.
161
See <https://www.humanrights.gov.au/lesbian-gay-bisexual-trans-and-intersex-equality> (accessed 3 September
2014).
162
The three Canadian provinces and the two states of the United States discussed for comparative purposes also have
laws in place that prohibit discrimination. However, it appears that only Ontario and California recognize gender
identity as a ‘protected attribute’ against which discrimination is unlawful. New York and British Columbia prohibit
discrimination on the grounds of sexual orientation but not gender identity, and Virginia does not prohibit
159
71
The Australian Government recognises that individuals may identify and be recognised within the
community as a gender other than the sex they were assigned at birth or during infancy or as an
indeterminate sex and/or gender, and this should be recognised and reflected in their personal records
held by Australian Government departments and agencies. Increased consistency in the way the
Australian Government collects and records sex and gender will strengthen Australia’s identity security
system, the integrity of agency records and the accuracy of individual personal records, in line with the
Australian Government’s approach to identity security.
A recent decision of the High Court of Australia held that the Births, Deaths and Marriages
Registration Act 1995 (NSW) permitted the Registrar to register a person’s sex as “non-specific”.164
Norrie, who had undergone a “sex affirmation procedure”, applied to the Registrar under the Act to
register both a change of sex to “non-specific” and a change of name. The Registrar issued Norrie a
Change of Sex certificate and a Change of Name certificate, both of which recorded Norrie’s sex as
“not specified”. Later, the Registrar advised Norrie that the Change of Sex certificate was invalid,
and re-issued a Change of Name certificate that recorded Norrie’s sex as “not stated”.
Norrie lodged an application for review of the Registrar's decision in the New South Wales
Administrative Decisions Tribunal. The Tribunal rejected Norrie’s application, holding that it was
not open to the Registrar to record Norrie’s sex as “non-specific”. The appeal panel of the Tribunal
dismissed an appeal against that decision. Norrie’s appeal to the Court of Appeal was upheld.
By special leave, the Registrar appealed to the High Court of Australia. The issue was whether it
was within the Registrar's power to record the sex of a person as “non-specific”. The High Court of
Australia decided that the Act recognised that a person may be neither male nor female and so
permits the registration of a person’s sex as “non-specific”.
A recent article concerning the High Court of Australia’s decision in Norrie described it as one
which is quite narrow in its practical application, yet is “momentous” in opening up debate in legal
discourse about redefining sex and gender.165
What does the future hold?
Having regard to Re: Alex, the first instance decisions following Re: Alex, the Full Court’s decision
in Re: Jamie, and statute and case law in international jurisdictions, it is apparent Australia is a
leader in the development of the law surrounding medical treatment for young people with gender
dysphoria. Re: Jamie is however a decision that was made at a particular point in time and at a
particular stage in the development of legal principle and medical science. Re: Jamie is likely to act
as a spur for further proceedings being initiated which challenge the boundaries of the current state
of the law governing young people and medical treatment. Accordingly, there is every reason for
discrimination on the basis of either. The New York State Assembly has passed the Gender Expression Non
Discrimination Bill seven times since 2007 but it has not come on for a vote in the Senate.
163
Australian Government Guidelines on the Recognition of Sex and Gender, Commonwealth of Australia, July 2013, 2
<http://www.ag.gov.au/Publications/Pages/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.aspx>
(accessed 3 September 2014).
164
NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 88 ALJR 506. The High Court of Australia’s
judgment summary can be found at < http://www.hcourt.gov.au/publications/judgment-summaries/2014-judgmentsummaries> (accessed 3 September 2014).
165
Aileen Kennedy, ‘Gender Identity: Reassessing the Definition of Sex and Gender’ (2013) 38 Alternative Law
Journal 186.
72
confidence that the jurisprudence will develop further, and develop rapidly, following Re: Jamie.
The following are issues that may present themselves for judicial consideration.
Enactment of ‘consent to medical treatment’ statutes
Shield argued that “[l]egislation is the optimal solution to transgender adolescents’ current
difficulties in obtain sex reassignment treatment.” Shield went on to say that, in the North
American context at least, “our current piecemeal approach to establishing exceptions to the
informed consent law is confusing to doctors, judges, and minors alike.”166 That raises the issue of
whether there is a realistic prospect of a national ‘consent to medical treatment’ statute being
enacted in Australia and what such a statute might contain.
There would be Constitutional hurdles to overcome if a national statute was contemplated, as there
is no obvious head of power under the Constitution that would permit the Commonwealth to
trespass into an area that is the province of the states. A condition precedent to a national statute
would likely be the states agreeing to refer their powers with respect to decision-making about
medical treatment for young people to the Commonwealth. In the family law jurisdiction, this has
occurred with respect to ex nuptial children and proceedings arising from the breakdown of a de
facto relationship.
In the absence of a national consent to medical treatment act, another possibility is that those states
and territories that have yet to enact consent to medical treatment legislation (being those states and
territories other than New South Wales and South Australia) might move to do so, either on a
collective or individual basis. Thus it is conceivable that model laws around medical treatment
could be developed through the Standing Committee on Law and Justice, of which all states and
territories are members, and enacted. This has already occurred in areas including tort law reform
and succession laws. Having regard to consent to medical treatment statutes that already exist in
Australia, and those that are in force in Canada, the United States and the United Kingdom, were
that to take place at either a national or an expanded state level, 16 years is the likely age at which
young people would be legally able to make their own decisions about medical treatment, both
positively (consent to) and negatively (refusal of). There would appear to be little reason to think
that even if Australia were to move towards a statutory model, a more permissive system of
presumptive capacity, such as that which exists in Ontario, would be adopted.
As Shield rightly pointed out, legislation could take a variety of forms. First, the ‘mature minor’
doctrine, or conditions precedent to being found to be Gillick competent, could be enshrined in
statute. Shield stated that “[c]odification of the ‘mature minor’ doctrine would allow all minors
who demonstrate that they understand the risks and consequences of their actions or otherwise to
demonstrate a capacity for adult judgments to make their own medical decisions.”167 Secondly, a
specific exception to the informed consent law for transgender youth could be established. Shield
wrote that this would reflect the fact that adolescents in such circumstances have both a greater
capacity and need to make decisions than other adolescents without similar experience would.
Shield’s observation accords with comments made by Bryant CJ in Re Jamie in her refutation of the
argument that there exists a particular class of treatment that disentitles autonomous decisionmaking by a child. Bryant CJ said that “treatment for something as personal and essential as the
166
167
Above n 117, 165.
Ibid 166.
73
perception of one’s gender and sexuality would be the very exemplar of where the rights of a
Gillick-competent child should be given full effect.”
The third possibility Shield suggested was to allow a third party to ascertain a minor’s ability to
consent, or to consent on the minor’s behalf. Re: Jamie already stands for the proposition that
responsibility for deciding whether or not a child is legally competent to consent to Stage 2
treatment lies with the Family Court. The Court also has a role in deciding whether Stage 1 and/or
Stage 2 treatment should be authorised in circumstances where there is disagreement between a
child, his or her parents or his or her doctors. Although enacting legislation to circumscribe the
Family Court’s role in making decisions about medical treatment for young people may provide
greater certainty, it also has the potential to reduce flexibility and discretion in the application of
legal principle and retard the development of the law in this dynamic area.
Shield also proposed a system of surrogate decision makers who could consent to medical treatment
on a minor’s behalf. As early discussed, surrogate decision making is not a concept known to
Australia’s private family law jurisdiction and it would therefore be surprising if any legislative
intervention in the area of consent to medical treatment was so orientated. Australia can also be
distinguished from the United States on the basis that although independent children’s lawyers,
where appointed, are not child-advocates as such, and cannot make decisions on a child’s behalf,
they nevertheless play an important role in putting evidence before the court as to what orders
would be in a child’s best interests.168 Invariably in proceedings for authorisation to undertake
medical treatment (and seemingly also in applications for declarations of competency), that includes
evidence of the child or young person’s wishes.
Reconsideration of the Re: Marion guidelines
In the event that an order providing for consent to perform medical treatment (ideally in the context
of an application for Stage 2 treatment of gender dysphoria) was appealed to the High Court of
Australia, it would fall to the High Court to consider whether Re: Marion remains good law. This
presumably would also involve consideration of the extent to which particular medical procedures
require curial authorisation, other than those involving the sterilisation of a young person with an
intellectual disability for a non-therapeutic purpose. Some commentators have argued that the Re:
Marion guidelines were developed specifically in the context of intellectual disability and on that
basis, appear to be suggesting that consent to medical procedures to be performed on young people
who do not have an intellectual disability falls within the exercise of parental responsibility, and/or
that assessments of Gillick competence do not need to be undertaken by courts.169 It would be
extremely useful for the High Court of Australia to consider that issue, and those related to it,
particularly in light of the developments that have occurred in medical treatment of certain
conditions (including gender dysphoria) since Re: Marion was decided. It is recognised however
that unless pro bono legal assistance was procured, as it was in Re: Jamie, the cost of pursuing an
appeal to the High Court of Australia would be prohibitive.
The role of the Family Court of Australia
The Family Court’s role in hearing and determining applications for consent to medical treatment
has been relatively fluid, insofar as the types of conditions which attract the court’s supervisory
168
169
Family Law Act 1975 (Cth), s 68LA.
See for example Dr Malcolm K Smith, ‘Health and Guardianship Law’ (2013) 33 Queensland Lawyer 182, 187.
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jurisdiction have been broad and undefined. As a result of Re: Jamie however, it is clear that
Gillick competent children and young people, or the parents of non-Gillick competent children, can
consent to Stage 1 treatment for gender dysphoria. This represents a considerable advance from Re:
Alex, where Nicholson CJ said he doubted that a young person (or at least a person aged 13 years)
would ever be competent to consent to treatment for that condition.
It is conceivable — particularly if gender dysphoria was no longer included in the DSM as a
psychiatric condition — that a judge could decide that the Court’s consent to Stage 2 treatment was
unnecessary. Finn J and Strickland J’s judgments in Re: Jamie confirm that Stage 2 treatment is
therapeutic but that fact alone is not determinative of the outcome. As Brennan J said in Re:
Marion, an assessment of proportionality is also required. Thus, unless Re: Jamie was overturned
or distinguished, a single judge would need to find that the risks involved in undertaking the
treatment, and the consequences of undertaking the treatment, were outweighed by the treatment’s
therapeutic benefit. The Full Court’s reasoning in Re: Jamie suggests that such a finding would be
more likely to occur where there was evidence that the irreversible effects of cross-hormone
treatment could be mitigated, as the reversibility of Stage 2 treatment, or lack thereof, was given
particular prominence in each of the three judgments.
As of May 2014 there had been several applications filed in the Family Court of Australia for a
declaration that a young person was competent to consent to their own medical treatment. One
judgment has been delivered in respect of such an application, being that of Johns J in Re: Spencer.
Although it is not a declaration of competency as such, Macmillan J in Re: Sarah made a
declaration that a particular form of medical treatment (a gonadectomy to be performed on a young
person with a disorder of sexual development) was not a special medical procedure requiring court
authorisation. As earlier discussed, after considering the relevant authorities, Macmillan J found
that she had jurisdiction under the Family Law Act to make the declaration sought. Similarly,
Johns J referred to relevant Family Court and High Court of Australia authority in concluding that
the power to make orders relating to the welfare of children included the power to grant declaratory
relief.
As a consequence of Re: Jamie, and for as long as it remains good law, the Family Court will have
a role in hearing and determining whether young people satisfy the test of Gillick competency and
in deciding whether or not to make a declaration that a particular form of medical treatment does
not require court authorisation. The Court’s jurisdiction to make a declaration, either as to
competency or as to whether court authorisation for medical treatment is required, is likely to be an
area that will receive further judicial scrutiny. Appellate guidance on the issue of jurisdiction to
grant declaratory relief in Part VII proceedings would be particularly welcomed.
Competency assessments – development of criteria
In light of the Full Court’s decision in Re: Jamie, the task that befalls the Court when dealing with
an application for Stage 2 treatment, or where the Court is asked to make a declaration of
competency, is to decide whether or not a young person is Gillick competent and therefore able to
make their own treatment decisions, absent disagreement. It would be surprising therefore if there
was not jurisprudential guidance developed as to what matters should be considered, what the court
must be satisfied of, and to what standard, in deciding whether or not a child satisfies the Gillick
test. In the Canadian decision of AC & Manitoba (Director of Child and Family Services), Abella J
75
surveyed the general literature on child development and set out a list of seven factors which could
be taken into account when assessing competence. These were:170







The nature, purpose and utility of the recommended medical treatment, including its risks
and benefits.
Whether the young person demonstrated the intellectual capacity and sophistication to
understand the information relevant to making the decision and to appreciate the potential
consequences.
Whether there was reason to believe that the young person’s views were stable and a true
reflection of his or her core values and beliefs.
The potential impact of the young person’s lifestyle, family relationships and broader social
affiliations on his or her ability to exercise independent judgment.
Whether there were any existing emotional or psychiatric vulnerabilities.
Whether the young person’s illness or condition had an impact on his or her decisionmaking ability.
Whether there was any relevant information from adults who know the adolescent, such as
teachers or doctors.
Abella J emphasised that the list of seven factors was not intended as a mandatory formula but was
designed to assist courts in assessing the extent to which a child’s wishes “reflect true, stable and
independent choices”.171 In Australia, that task is made significantly easier through the appointment
of independent children’s lawyers and the commissioning of family reports, as well as through the
use of expert evidence.
In the United Kingdom, Lord Fraser, a judge in the majority in Gillick, set out five matters which, if
followed by a prescribing doctor, would mean that the doctor was acting lawfully in prescribing
contraceptives to a person aged under 16. These five matters have become known as the “Fraser
Guidelines”. The first of the five guidelines captures the essence of the majority’s decision in
Gillick; namely that the person understands the doctor’s advice.
The development of guidelines by way of judicial decision making is not unfamiliar to the Family
Court. The decisions in Re: K172 and Re F: Litigants in Person Guidelines 173 are examples. In the
context of medical procedures requiring court authorisation, the rules governing medical procedure
applications and the matters the court should take into account under rule 4.09(1) are based on list
of factors enumerated by Nicholson CJ in In Re: Marion (No 2).174
The limits of Gillick competence
A highly topical issue, and one that has attracted much curial and academic attention in Australia
and internationally, is whether courts retain supervisory jurisdiction in respect of Gillick competent
children, and if so, in what circumstances.
170
[2009] 2 SCR 181 at [96].
Ibid.
172
(1994) FLC 92-461.
173
(2001) FLC 93-072.
174
(1994) FLC 92-448.
171
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In Re: Jamie, the public authority submitted that there was a spectrum of opinion as to the limits of
Gillick competence in the context of applications for treatment for gender dysphoria. The first
position advanced by the public authority was that Gillick competence was determinative of the
matter, irrespective of the type of treatment being sought and whether there was disagreement
between the child, parents and doctors. The second position was that, even when the Court found
that a child was competent to consent to their own treatment, it retained jurisdiction where there
was disagreement. The third position was that a person under the age of 18 should never be capable
of consenting to their own treatment for gender dysphoria, given that the effect of treatment was to
alter an otherwise healthy body to align it with their ‘brain sex’. The public authority supported the
third position. The AHRC supported the second.
The Full Court did not engage directly with the question of the limits of Gillick competence, as it
was unnecessary to do so for the purpose of determining the appeal. Despite some robust
comments made by Bryant CJ about adolescent decision making, ultimately all three members of
the Full Court effectively adopted the second position; namely that the Court’s jurisdiction was
attracted by the presence of disagreement, even where a young person is Gillick competent.
Interestingly, but incorrectly, Johns J in the decision of Re: Spencer interpreted the Full Court’s
decision to mean that “once the question of Gillick competence was established, the Court would
have no further role.”
Exploring the ‘metes and bounds’ of Gillick competence is something that would be expected to
occur as a consequence of clear direction from the Full Court in Re: Jamie that a competency
assessment should precede any application for authorisation of treatment for gender dysphoria. The
age at which Stage 2 treatment usually commences, being 16 years, and the significance ascribed to
the fact that transgender young people have usually been living consistently and unwaveringly in
their affirmed sex for many years by the time such an application is made, are likely to be of
particular relevance to the determination of the question of Gillick competency. It should be
recalled that the decision in Gillick concerned only children under the age of 16, and this fact may
assume greater significance in the application of Gillick principles to medical procedures involving
children aged 16 years and over.
One potentially fertile area for exploration is the distinction between the capacity to consent to
medical treatment and the capacity to refuse medical treatment, particularly where a young person’s
life is at risk Post Gillick jurisprudence in the United Kingdom and recent decisions of the majority
of the Supreme Court of Canada in AC & Manitoba and of the New South Wales Court of Appeal
in X & Sydney Hospital Network are suggestive of the fact that the sanctity of life will take
precedence over individual dignity in decisions about the refusal of life-saving treatment, even in
jurisdictions with a human rights charter. However, although Stage 2 treatment for gender identity
dysphoria may be life-saving in the sense that it could prevent transgender young people from
serious harm, including self-harm, it can logically be distinguished from the administration of blood
transfusions for aggressive forms of cancer, without which the prognosis is that the patient will die.
In light of the decision of Silber J in Axon and Binnie J’s strongly worded dissent in AC &
Manitoba, as well as Australian decisions on the limits of courts’ supervisory jurisdiction, there is
reason to be confident that Gillick competence will assume more prominence in applications for
authorisation of Stage 2 medical treatment. It is to be hoped that the important distinction between
77
consent to and refusal of medical treatment, and the type of treatment for which a declaration of
competency is being sought, will be the subject of further judicial consideration.
It would also be of assistance for there to be some discussion of the concept of disagreement in
ousting a Gillick competent child’s right to make decisions about their own medical treatment.
Who it is that disagrees, what they disagree about, whether there is a ‘reasonableness’ requirement
surrounding the disagreement, and how much significance should be accorded to a young person’s
views in the event of disagreement, are some of the issues ripe for judicial contemplation.
Gender dysphoria as a “disorder”
It will be recalled that Nicholson CJ in Re: Alex doubted that “gender identity disorder” was a
“disorder”. In Re: Bernadette, Collier J recorded that there was criticism of attempts to treat
transsexualism as a mental illness and that none of the experts in Re: Bernadette expressed a view
that mental illness was a satisfactory explanation for gender identity disorder. Bryant CJ in Re:
Jamie said:175
It may be that in time to come, transsexualism will no longer be described as a disorder, but for the
time being, and for the foreseeable future, the weight of professional opinion is that it represents a
particular category of pathology or mental illness.
The World Professional Association for Transgender Health, the body responsible for the
development of the Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People, released a statement in May 2010 urging the de-psychopathologisation of
gender nonconformity worldwide. This statement noted that “the expression of gender
characteristics, including identities, that are not stereotypically associated with one’s assigned sex at
birth is a common and culturally diverse human phenomenon [that] should not be judged as
inherently pathological or negative.”176
Wallbank has said:177
Psychiatrists and psychologists have come to rely upon the DSM terminology, notwithstanding its
defects and difficulties, so as to give legitimacy and professional protection when diagnosing and
treating transsexualism; especially in children. The reality is, however, that the truly important role
performed by psychiatry and psychology in the medical treatment of transsexualism, in both adults
and children, is to rule out disorder or illness as an explanation for the phenomenon.
If gender dysphoria was de-classified as a psychiatric disorder, it would nevertheless still be
incumbent upon the Family Court (assuming it retained a role with respect to such applications for
consent for medical treatment) to decide whether or not gender dysphoria was a “malfunction or
disease” for the purpose of the Re: Marion guidelines, for as long as those guidelines remain good
law.
175
[2013] FamCAFC 110 at [69].
World Professional Association for Transgender Health, De-Psychopathologisation Statement, 26 May 2010,
http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1351&pk_association_webpage=3928 (accessed
3 September 2014).
177
Similar issues arose around the pathologisation of homosexuality, which was included as a mental disorder in the
DSM until it was removed in 1973.
176
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Binary conceptions of gender
There have already been significant developments, in Australia and internationally, that suggest that
legislators and courts are giving greater recognition to the diversity of human sexuality in
conceptualising sex, gender and gender identity. Some of those developments, such as outlawing
discrimination on the basis of gender identity in Australia, have been discussed earlier. Judicial
conceptualisations of what it means to be ‘male’ and ‘female’ have also changed markedly. In 1971,
the decision of Ormrod J in Corbett v Corbett178 became authority in the United Kingdom, in
Australia and in other jurisdictions for the proposition that sex is fixed at birth irrespective of
psychology, and that the effects of medical intervention are irrelevant. The correctness of the
reasoning in Corbett was affirmed by the House of Lords in Bellinger v Bellinger in 2003.179
In 2001, in the case of Re Kevin (Validity of Marriage of a Transsexual),180 Chisholm J examined in
detail what it means to be a ‘man’ and a ‘woman’ for the purpose of deciding whether a transsexual
person could marry under Australian law. In what has been described as a “powerful” and “wellreasoned” judgment, Chisholm J departed from strict reliance on biological features to determine
sex. Chisholm J said that he considered ‘brain sex’ to make a significant contribution to the
development of a person’s sexual identity. Chisholm J stated “…it is wrong to say that a person’s
sex depends on any single factor, such as chromosomes or genital sex; or some limited range of
factors, such as the state of the person’s gonads, chromosomes or genitals (whether at birth or at
some other time).” The decision was upheld by the Full Court of the Family Court.
Bryant CJ, in her 2009 paper ‘It’s My Body, Isn’t It?’,181 observed that Re: Kevin has been relied
upon in litigation in the European Court of Human Rights. The Grand Chamber of the European
Court of Human Rights, in the decisions of Goodwin v United Kingdom and I v United Kingdom,
quoted extensively from Re Kevin in ultimately finding that the failure of states to legally recognise
gender reassignment breached Article 8 of the European Convention.
Wallbank, who acted for the applicants in Re: Kevin, has said that the decision in Re: Kevin:182
… continues and expresses a long international common law tradition of cases dealing with
transsexualism in a culturally inclusive way. In its expert and detailed exploration of transsexualism
as an example of the human condition, it is a general teaching, as much as a legal judgment, and
represents the foundation of a new era in human rights for people who experience a phenomenon
which has been so mystified and misunderstood.
Both ‘statute’ and ‘judge-made’ law have evolved considerably to reflect contemporary
understandings of sex and gender identity. Having regard to Chisholm J’s decision in Re Kevin, to
the ‘gender dysphoria’ cases heard in the Family Court of Australia, and to Bryant CJ’s comments
in Re: Jamie about the importance of recognising diversity in human sexuality, it is to be expected
that family law will continue to develop in a way that is sensitive to and inclusive of the needs of
transgender young people.
178
[1971] P 83.
[2003] 2 AC 467.
180
[2001] FamCA 1074.
181
Above n 152.
182
Above n 45, 34.
179
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Reasoning by reference to human rights law
Finally, it is apparent that even in the absence of a specific national human rights charter, like
Canada’s Charter of Rights and Freedoms, the language of human rights will increasingly permeate
Australian decision making surrounding young people generally, and consent to medical treatment
for young people specifically.
As earlier discussed, the AHRC is frequently invited to intervene in such proceedings and to make
submissions directed towards the applicability of international human rights instruments to
domestic family law proceedings. Before the Full Court in Re: Jamie, the AHRC said that various
articles of UNCROC (Articles 3, 5, 12 and 18) and of the CRPD (Articles 3, 7 and 12) were
relevant to the appeal. Consistent with the High Court of Australia’s decision in Teoh, the AHRC
submitted that UNCROC and the CRPD should be interpretative aids when hearing applications
under the Family Law Act. The AHRC further submitted that it is important for children to have
input into decisions affecting them, including decisions about medical treatment. Bryant CJ’s
reasons in Re: Jamie in particular refers to children’s rights under international conventions and
under the Family Law Act, especially in the context of young people’s capacity to consent to their
own medical treatment. Bryant CJ also had regard to human rights instruments in her 2009
judgment in Re: Alex.
The Full Court’s decision in Re: Jamie represents a significant departure from the earlier decision
of Re: Alex; one that was arrived at by reference to and having regard to children’s rights at
international law. Given recent developments in Australia, such as the establishment of the position
of a National Children’s Commissioner, it would be surprising if judicial reasoning surrounding
applications for consent for medical treatment was not increasingly imbued with the language of
international human rights.
Conclusion
Re: Jamie is an important and significant decision. For the first time, the Family Court of Australia
has provided guidance at appellate level about whether and in what circumstances court
authorisation for treatment for gender dysphoria is required. The Court’s role, as an assessor of a
young person’s capacity to consent to their own treatment and as an arbiter where a child is not
Gillick competent or where there is disagreement, is more clearly defined as a result. The Full
Court has also determined that a “disease” or “malfunction” can include psychological and
psychiatric conditions, that treatment for such conditions can be therapeutic, that an assessment of
proportionality between the benefit to the child and the risks of the procedure is required, and that
the reversibility of the treatment is a key consideration. The state of the law in Australia as to what
children and young people can and cannot consent to on their own behalf, and who makes the
decision about legal capacity, is much clearer as a result of Re: Jamie.
There are significant differences between the approach taken in Australia and that in Canada and
the United States. The Family Court of Australia has a much greater role in making treatment
decisions than do courts in North America. For this reason, there is a wealth of Australian
jurisprudence on medical treatment for transgender young people as compared with that available in
those countries. Despite an absence of North American case law however, there is much that
Australia can learn from Canada and the United States, and from other jurisdictions that have a
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human rights charter or act, such as the United Kingdom. Decisions like those of the Supreme
Court of Canada in AC & Manitoba, and of Silber J in Axon, which both involved consideration of
competing rights under human rights enactments, demonstrate that some of the complex issues
arising in the area of young people and medical treatment are thrown into sharp relief when ‘charter
rights’ are invoked.
History suggests that it is unlikely that Australia will legislate to create a human rights act in the
near future, but that does not mean that young people’s human rights have no place in the Family
Court’s jurisprudence. In part due to the intervention of the AHRC, and in part due to greater
community understanding of non-gender conformity, it is likely young transgender people’s human
rights will be at the forefront as the Family Court continues to grapple with the myriad complexities
that arise in the area of competency and consent to medical treatment.
81